8-K
Vivakor, Inc. (VIVK)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 27, 2026
VIVAKOR, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 001-41286 | 26-2178141 |
|---|---|---|
| (State or other jurisdiction of | (Commission | (IRS Employer |
| incorporation or organization) | File Number) | Identification No.) |
5220 Spring Valley Road, Suite 500
Dallas, TX 75254
(Address of principal executive offices)
(949) 281-2606
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock | VIVK | The Nasdaq Stock Market LLC <br> (Nasdaq Capital Market) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Current Report on Form 8-K or this Report contains forward-looking statements. Any and all statements contained in this Report that are not statements of historical fact may be deemed forward-looking statements. Terms such as “may,” “might,” “would,” “should,” “could,” “project,” “estimate,” “pro-forma,” “predict,” “potential,” “strategy,” “anticipate,” “attempt,” “develop,” “plan,” “help,” “believe,” “continue,” “intend,” “expect,” “future” and terms of similar import (including the negative of any of the foregoing) may be intended to identify forward-looking statements. However, not all forward-looking statements may contain one or more of these identifying terms. Forward-looking statements in this Report may include, without limitation, statements regarding the plans and objectives of management for future operations.
The forward-looking statements are not meant to predict or guarantee actual results, performance, events or circumstances, including the closing of the Membership Interest Purchase Agreement disclosed below, and may not be realized because they are based upon our current projections, plans, objectives, beliefs, expectations, estimates and assumptions and are subject to a number of risks and uncertainties and other influences, many of which we have no control over. Actual results and the timing of certain events and circumstances may differ materially from those described by the forward-looking statements as a result of these risks and uncertainties.
Readers are cautioned not to place undue reliance on forward-looking statements because of the risks and uncertainties related to them We disclaim any obligation to update the forward-looking statements contained in this Report to reflect any new information or future events or circumstances or otherwise, except as required by law.
1
| Item 1.01 | Entry Into Material Definitive Agreement |
|---|
Third Amendment to Loan Agreement and Fourth Forbearance Agreement and Issuance of Fourth Junior Secured Convertible Promissory Note
As previously reported, on March 17, 2025, Vivakor, Inc. (the “Company”), issued a junior secured convertible promissory note (the “Initial Note”) to J.J. Astor & Co. (the “Lender”), in the principal amount of $6,625,000 (the “Principal Amount”), in relation to a Loan and Security Agreement by and between the Company, its subsidiaries, and the Lender (the “Loan Agreement”). The Company received $5,000,000, before fees. The Company received the funds on March 18, 2025. In relation to the Loan Agreement, the Company also entered into a Registration Rights Agreement with the Lender (the “RRA”), under which the Company was obligated to file a resale registration statement with the SEC registering any shares of its common stock issuable under the Note no later than sixty (60) days after closing. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on March 21, 2025.
As previously reported, on July 9, 2025, the Company entered into a Forbearance and Amendment to Loan Agreement and Note, which amended the terms of the Loan Agreement, Initial Note and RRA (the “First Forbearance Agreement”). Under the terms of the First Forbearance Agreement, the Lender agreed to loan us additional funds under a Second Junior Secured Promissory Note (the “Second Note”) and agreed to forbear any default under the Initial Note in exchange for certain consideration. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on July 21, 2025.
As previously reported, on October 8, 2025, the Company entered into a Second Forbearance and Amendment to Loan Agreement and Notes, which amended the terms of the Loan Agreement, Initial Note, the RRA, the Second Note and the First Forbearance Agreement (the “Second Forbearance Agreement”). Under the terms of the Second Forbearance Agreement: (i) the Lender agreed to loan us an additional amount up to $2,450,000, (ii) the Outstanding Principal Amount of the Initial Note was $2,259,319.89 and the Outstanding Principal Balance on the Second Note was $5,685,805.13 on the Forbearance Agreement Effective Date, (iii) the Lender provided notice of default to the under the Second Note, thereby accelerating all amounts due thereunder, (iv) the Lender agreed the Company was not in default of the Initial Note, Second Note or other Transaction Documents effective September 30, 2025 and to forbear declaring an Event of Default going forward and accelerating all amounts due under the Initial Note and the Second Note, subject to the Company complying with the terms of the Second Forbearance Agreement, (v) all amounts due under the Initial Note and the Second Note, with any accrued interest, will be due on or before November 30, 2025, (vi) interest under the Initial Note and Second Note will continue at the default interest rate of 19%, (vii) the conversion terms under the Initial Note and Second Note will remain on the Default Conversion Price under those instruments, and (viii) the Lender agreed to a standstill period until November 30, 2025, during which time the Lender will not declare an event of default or accelerate any payment obligations under the Initial Note or the Second Note, so long at the Company (a) pays interest at the Default Interest Rate on the Initial Note and the Second Note, (b) issues the Third Note to the Lender, and (c) pays in full all past due payments on the Initial Note and the Second Note on or before November 30, 2025. In connection with the Second Forbearance Agreement the Lender agreed to loan the Company up to an additional $2,450,000. On October 9, 2025, the Company entered and Lender into an Additional Junior Secured Convertible Note (the “Third Note”), under which the Company agreed to issue the Lender the Third Note in the principal amount of $1,620,000, with the Company receiving proceeds of $1,152,000 before subtracting $53,000 for legal fees and origination fees. The Company received the first funds from the Third Note on October 9, 2025 with the remainder received on October 10, 2025. As additional consideration for the Second Forbearance Agreement and the Third Note, the Company agreed to issue the Lender 286,000 shares of its common stock for $286 (the “Commitment Shares”). The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on October 14, 2025.
The Initial Note was satisfied in full on November 20, 2025 and the Third Note was satisfied in full on or about October 27, 2025, which left only the Second Note outstanding.
2
As previously reported, on February 5, 2026, the Company and the Lender entered into a fourth Forbearance, Note Payment and Registration Rights Amendment Agreement (the “Fourth Forbearance Agreement”), pursuant to which (a) the parties agreed that $5,995,722.21 was then outstanding, due and payable under the Second Note and (b) the Maturity Date of the Second Note was extended to as late as January 1, 2027, and (c) the Company agreed to pay the outstanding balance of the Second Note in the following installments, with payments, payable, at the option of the Company, either in cash or under certain conditions in Conversion Shares issued at the Default Conversion Price that are immediately salable by the Lender under Rule 144, as follows: (i) $50,000 per week commencing Monday, April 6, 2026, (ii) $100,000 per week commencing Monday, July 6, 2026, (iii) $150,000 per week commencing Monday, October 5, 2026, and (iv) $250,000 per week commencing Monday, December 7, 2026, with the outstanding balance to be paid in full by January 1, 2027 (the “Amended Repayment Terms”). The information regarding this transaction was filed in a Current Report on Form filed with the Commission on February 5, 2026.
On February 27, 2026, the Company and the Lender entered into a Third Amendment to Loan Agreement Fourth Forbearance Agreement and Registration Rights Agreement (the “Loan Agreement Amendment No. 3”) and $993,750 Original Principal Amount Junior Secured Promissory Note (the “Fourth Note”). Under the terms of the Fourth Note the Lender agreed to loan us an additional $750,000, which matures on April 6, 2026. In the event we default on the Fourth Note, the note begins accruing interest at 19% per annum, the principal amount due under the note is increased to 110% of the principal amount owed at the time of default, and the amounts due under the note become convertible with the Lender allowed to convert 200% of the amount due under the note at a conversion price equal to an 80% discount to the lesser of (a) the closing price of the Company’s common stock on (x) the Funding Date of the Initial Note and (y) the Funding Date of the Second Note (whichever closing price is lower), or (b) 20% of the closing price of the Company Common Stock on such applicable Funding Date. Under the terms of the Loan Agreement Amendment No. 3, the Lender and Company agreed the date by which the Company has to relist on Nasdaq under the Fourth Forbearance Agreement was extended to April 6, 2026, and the Second Note default terms were amended in certain respects to the default terms in the Fourth Note. The Company received the funds from the Fourth Note on February 27, 2026, minus $40,000 for legal and transaction fees. The Company and the Lender also entered into a Subsidiary Guarantee, under which the Company’s subsidiaries are guaranteeing the amounts due under the Fourth Note (the “Subsidiary Guarantee”) and a Pledge and Security Agreement, under which the Company and its subsidiaries secured the repayment of the amounts due under the Second Note and the Fourth Note with their assets as collateral (the “Pledge and Security Agreement”). Additionally, the Company conveyed certain real property and improvements it owns in Blaine County, Oklahoma to the Lender to secure the repayment of the Fourth Note. In the event the Fourth Note is paid in full by the maturity date, the Oklahoma property will be reconveyed to the Company.
This summary is not a complete description of all of the terms of the Loan Agreement Amendment No. 3, the Fourth Note, the Subsidiary Guarantee, and the Pledge and Security Agreement, and are qualified in their entirety by reference to the full text of the Loan Agreement Amendment No. 3, the Fourth Note, the Subsidiary Guarantee, and the Pledge and Security Agreement, forms of which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4 respectively hereto, which are incorporated by reference into this Item 1.01.
| Item 3.02 | Unregistered Sales of Equity Securities |
|---|
As disclosed in Item 1.01, on October 8, 2025, we issued the Fourth Note to the Lender, which contains a standard Rule 144 restrictive legend. The issuance of the foregoing securities were exempt from registration pursuant to Section 4(a)(2) of the Securities Act promulgated thereunder as the Lender is an accredited investor and familiar with our operations based on representations in the Loan Agreement Amendment No. 3 and the Fourth Note.
3
| Item 9.01 | Financial Statements andExhibits |
|---|---|
| (d) | Exhibits |
| --- | --- |
| Exhibit No. | Title |
| --- | --- |
| 10.1 | Third Amendment to Loan Agreement Fourth Forbearance Agreement and Registration Rights Agreement with J.J. Astor dated February 27, 2026 |
| 10.2 | Fourth Junior Secured Convertible Promissory Note to J.J. Astor dated February 27, 2026 |
| 10.3 | Subsidiary Guarantee with J.J. Astor dated February 27, 2026 |
| 10.4 | Pledge and Security Agreement with J.J. Astor dated February 27, 2026 |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL). |
4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| VIVAKOR, INC. | |||
|---|---|---|---|
| Dated: March 5, 2026 | By: | /s/ James H. Ballengee | |
| Name: | James H. Ballengee | ||
| Title: | Chairman, President & CEO |
5
Exhibit 10.1
THIRD AMENDMENT TO LOAN AGREEMENT
FOURTH FORBEARANCE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
This Third Amendment to Loan Agreement, Fourth Forbearance Agreement and Registration Rights Agreement (this “Amendment Agreement”) is dated as of February 27, 2026 (the “Effective Date”) and is made and entered into between Vivakor, Inc., a Nevada corporation (the “Company”), and J.J. Astor & Co., a Utah corporation (including its successors and assigns, the “Lender”).
WHEREAS, the Company and the lender entered into a loan agreement (the “Loan Agreement”) and a registration rights agreement dated as of March 17, 2025 (the “Registration Rights Agreement”); and
WHEREAS, on or about the date of the Loan Agreement the Company borrowed the sum of $5,000,000, less the payments set forth in the Flow of Funds Agreement (the “Initial Loan”) and issued to the Lender, a $6,625,000 Original Issue Amount junior secured convertible promissory note in the form of Exhibit A to the Loan Agreement (the “Initial Note”); and
WHEREAS, the Company failed to pay of certain of the Weekly Installment Payments due under the Initial Note and the Company and the Lender entered into a Forbearance and Note Payment Amendment Agreement (the “First Forbearance Agreement”), effective as of April 14, 2025 (the “First Forbearance Agreement Effective Date”); and
WHEREAS, under the First Forbearance Agreement, (i) the Outstanding Principal Amount of the Initial Note was $6,151,783 on the First Forbearance Agreement Effective Date, (ii) the principal amount under the Initial Note was increased to $6,766,961.30 (the “Amended Principal Amount”), representing. be 110% of the Outstanding Principal Amount of the Note as of the Forbearance Agreement Effective Date, (iii) the Weekly Installment Payments under the Initial Note stayed the same, (iv) a fee of $615,178.30 was added to the Amended Principal Amount of the Initial Note and was due and payable by the Company on or before January 7, 2026, (v) past due interest totaling $275,942.37, that has accrued between the Forbearance Agreement Effective Date and the Effective Date, was also be paid on or before January 7, 2026, and (vi) both the $615,178.30 fee and the $275,942.37 of past due interest was to be paid in full in cash on or before January 7, 2026; and
WHEREAS, the Amended Principal Amount of the Initial Note was paid in full on November, 20, 2025; and
WHEREAS, On July 9, 2025 the Lender and the Company entered into a Second Amendment to Loan Agreement and the Registration Rights Agreement, pursuant to which the Lender lent to the Company the additional sum of $4,400,000 (the “Second Loan”), and the Lender made the Second Loan, less (a) an eighty-eight thousand dollar ($176,000) origination fee, (b) an aggregate of $3,217,549.37 (the “Holdback Amounts”) representing (i) a $891,000 holdback amount to be applied to pay the first six Weekly Installment Payments when due under the Second Note (hereinafter defined), (ii) $1,380,115.37 to be applied to pay the seven past due Weekly Installment Payments under the Initial Note, plus accrued interest thereon, and (iii) $946,434 to secure and cover the payment of the next six Weekly Installment Payments due under the Initial Note, and (c) $20,000 to pay Lender’s legal fees, all as set forth in the Flow of Funds Agreement, resulting in net proceeds to the Company of $986,450.63; and
WHEREAS, in connection with the Second Loan, the Company issued to the Lender an additional $5,940,000 Original Issue Amount junior secured convertible promissory note in the form of Exhibit A-2 issued to the Lender in connection with the Second Loan (the **“**Second Note”); and
WHEREAS, simultaneous with the execution of the Second Amendment to Loan Agreement and the Registration Rights Agreement, the Company and the Lender entered into a second Forbearance and Note Payment Amendment Agreement (the “Second Forbearance Agreement”);
WHEREAS, on October 8, 2025 (the “Third Forbearance Agreement Effective Date”), the Company and Lender entered into a Third Forbearance and Amendment to Loan Agreement and Notes (the “Third Forbearance Agreement”), which amended the terms of the Loan Agreement, Initial Note, the Registration Rights Agreement, the Second Note and the Second Forbearance Agreement and (i) the Lender agreed to loan the Company an additional amount up to $2,450,000 (the “Third Note”), (ii) the outstanding principal amount of the Initial Note was $2,259,319.89 and the outstanding principal balance on the Second Note was $5,685,805.13 on the Third Forbearance Agreement Effective Date, (iii) the Lender provided notice of default to the under the Second Note, thereby accelerating all amounts due thereunder, (iv) the Lender agreed the Company was not in default of the Initial Note, Second Note or other Transaction Documents effective September 30, 2025 and to forbear declaring an Event of Default going forward and accelerating all amounts due under the Initial Note and the Second Note, subject to the Company complying with the terms of the Second Forbearance Agreement, (v) all amounts due under the Initial Note and the Second Note, with any accrued interest, would be due on or before November 30, 2025, (vi) interest under the Initial Note and Second Note would continue at the default interest rate of 19%, (vii) the conversion terms under the Initial Note and Second Note would remain on the Default Conversion Price under those instruments, and (viii) the Lender agreed to a standstill period until November 30, 2025, during which time the Lender will not declare an event of default or accelerate any payment obligations under the Initial Note or the Second Note, so long at the Company (a) pays interest at the Default Interest Rate on the Initial Note and the Second Note, (b) issues the Third Note to the Lender, and (c) pays in full all past due payments on the Initial Note and the Second Note on or before November 30, 2025;
WHEREAS, the Principal Amount of the Third Note was paid in full on or about October 27, 2025; and
WHEREAS, as a result of the Company’s failure to make the payments required to be made under the Second Note and the Second Forbearance Agreement, on February 5, 2026, the Company and the Lender entered into a fourth Forbearance, Note Payment and Registration Rights Amendment Agreement (the “Fourth Forbearance Agreement”), pursuant to which inter alia, (a) the parties agreed that $5,995,722.21 is currently outstanding, due and payable under the Second Note and (b) the Maturity Date of the Second Note was extended to as late as January 1, 2027, and (c) the Company agreed to pay the outstanding balance of the Second Note in the following installments, with payments, payable, at the option of the Company, either in cash or under certain conditions in Conversion Shares issued at the Default Conversion Price that are immediately salable by the Lender under Rule 144, as follows: (i) $50,000 per week commencing Monday, April 6, 2026, (ii) $100,000 per week commencing Monday, July 6, 2026, (iii) $150,000 per week commencing Monday, October 5, 2026, and (iv) $250,000 per week commencing Monday, December 7, 2026, with the outstanding balance to be paid in full by January 1, 2027 (the “Amended Repayment Terms”); and
2
WHEREAS, the Company now desires to borrow up to an additional $1,000,000, with an initial funding of $750,000 and a potential additional funding of $250,000 (the “Fourth Loan”) and the Lender is willing to advance such Fourth Loan, subject to (a) the execution and delivery of this Amendment Agreement, (b) the Company’s issuance to the Lender an additional junior secured convertible promissory note in Original Issue Amount equal to 1.325 times the amount funded under the Fourth Loan, that shall be due and payable in full on a date which shall be ninety (90) days from the Effective Date and which shall be in the form of Exhibit A-3 annexed hereto and made a part hereof (the **“**Fourth Note”), (c) the transfer to the Lender of all right, title and interest owned by CPE Gathering Midcon LLC, a Delaware Limited Liability Company in and to approximately 25.01 acres of real property and premises situated in Blaine County, Oklahoma, pursuant to the Oklahoma Property Deed in the form of Exhibit B annexed hereto and made a part hereof (the “Oklahoma Property Deed”), with a right to buy back maintained by the Company, (d) an amended and restated Subsidiary Guarantees in the form of Exhibit C annexed hereto and made a part hereof and (e) the personal guaranty of James Ballengee of payment of the Fourth Note in the form of Exhibit D annexed hereto and made a part hereof (the “Ballengee Guaranty”).
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Company and the Lender desire to amend the Loan Agreement pursuant to this Agreement.
| 1. | Defined Terms. Unless otherwise defined in this Amendment Agreement all capitalized terms when used herein shall have the same meaning as they are defined in the Loan Agreement, the Forbearance Agreement and the Notes. |
|---|
“Additional Commitment Shares” means 150,000 shares of Company Common Stock that was sold by the Company to the Lender for $150 at the Closing in partial consideration for the Second Loan.
“Additional Flow of Funds Agreement” means the agreement between the Company and the Lender in the form of Exhibit E annexed hereto.
Additional Funding Date, The term “Additional Funding Date” the date of funding of the Fourth Loan after satisfaction of all conditions to such funding.
“Conversion Price” Clause (iv) of the definition of Conversion Price set forth in the Loan Agreement is hereby deleted and the following clause (iv) and clause (v) is substituted in lieu thereof in the Loan Agreement and this Amendment Agreement:
3
“(iv) as used herein, the term “Market Conversion Price” shall mean a fifty percent (50%) discount to the lower of (x) the closing market price of the Common Stock as traded on Nasdaq or other applicable Trading Market on the date of issuing such Conversion Shares, or (y) the lowest VWAP of the Common Stock for the twenty (20) trading days immediately prior to the date of issuance of such fully-registered Conversion Shares. In the event that, as a result of the application of Nasdaq Rule 5635(d) or otherwise, the Market Conversion Price is below the then-applicable Conversion Price at the time of payment of any one or more Weekly Installment Payments due under the Notes in shares of its Common Stock, the Company shall immediately pay to the Lender an amount in cash (the “Make Whole Payment”) as shall be calculated by multiplying the number of Conversion Shares so paid by the amount by which the Conversion Price exceeds the Market Conversion Price. In the event that the Company is unable to pay all or any portion of the Make Whole Payment in cash, the Company shall, in lieu thereof, issue to the Lender additional fully registered for resale Conversion Shares (the “Make-Whole Shares”) by dividing the amount of the Make Whole Payment by the Market Conversion Price, the number of which Make-Whole Shares shall be calculated on each date when such Make-Whole Shares shall be issued. For the avoidance of doubt, in all cases such Additional Make-Whole Shares when issued shall be fully registered for immediate resale in such Additional Resale Registration Statement that is declared effective by the SEC. For the avoidance of doubt, if, for example, the Market Conversion Price is $2.00 per share the Company shall either issue to the Lender an additional 10,000 immediately salable Conversion Shares or Payment Shares as Make Whole Shares or shall pay to the Lender an additional $1.00 per share or $20,000 in cash.
(v) Notwithstanding the foregoing, in the event of acceleration of either or both of the Notes, as a result of the occurrence and during the continuation of an uncured Event of Default (an “Acceleration Event”), the Conversion Price shall be adjusted to an amount that is equal to an 80% discount to the lesser of (a) the closing price of the Company Common Stock on (x) the Funding Date of the Initial Note and (y) the Funding Date of the Second Note (whichever closing price is lower), or (b) 20% of the closing price of the Company Common Stock on such applicable Funding Date (the “Event of Default Conversion Price”). In addition, in the event that the Event of Default Conversion Price shall be greater than the lower of (a) the lowest closing price of the Common Stock as traded on Nasdaq or other applicable Trading Market on the date of notice of an Acceleration Event or notice of conversion is given by the Lender, or (b) the lowest VWAP of the Common Stock for the (20) trading days immediately prior to the date that any notice of conversion is given by Lender (the “Default Market Price”), the Company shall issue to the Lender at each date of conversion additional immediately salable and fully registered for resale Conversion Shares so that the total number of Conversion Shares shall be based on the Default Market Price (the “Default Make Whole Shares”). For the avoidance of doubt, if the Event of Default Conversion Price shall be $3.00 per share and the Default Market Price shall be $2.00 per share, and the Lender shall convert any weekly installment or the Note into 20,000 Conversion Shares, then the Company shall issue to the Lender (a) an additional 10,000 immediately salable Conversion Shares as Default Make Whole Shares, plus (b) the additional 10% premium of such Weekly Installment Payments, in cash or in additional Default Make-Whole Shares, as set forth above. Accordingly, the aggregate number of Conversion Shares subject to the Event of Default Conversion Price shall be subject to increase based on the issuance of additional Make Whole Shares, as provided above and such Conversion Shares shall only be issued if they have been fully registered for resale pursuant to the Default Registration Statement as contemplated above.”
4
“Fourth Note” shall have the meaning as that term is defined in the Recitals.
The definition of “Make Whole Shares”, as defined in the Loan Agreement and the Registration Rights Agreement is hereby deleted and is replaced with the following definition:
“Make Whole Shares” means collectively, the Additional Make Whole Shares and the Default Make Whole Shares.”
“Maximum Conversion Shares” the definition of “Maximum Conversion Shares” set forth in the Loan Agreement is hereby deleted and replaced with the following definition which shall be applicable to both the Loan Agreement and this Amendment Agreement.
“Maximum Conversion Shares” means, after an Acceleration Event in which the Lender shall accelerate payment of the aggregate Outstanding Principal Amount of the Notes following the occurrence of any Event of Default (as defined in the Notes) which shall not be timely cured by the Loan Parties (a) the Outstanding Principal Amount of the Second Note shall automatically increase by 110% (a maximum of $5,995,722.21), shall accrue interest on such Outstanding Principal Amount at the rate of 19% per annum (collectively the “Default Amount”), and upon the request of the Lender, all or any portion of such Default Amount may be converted by the Lender into that number of shares of Company Common Stock as shall be determined by (a) dividing 200% of the then increased Outstanding Principal Amount of the Notes by (b) the Event of Default Conversion Price then in effect; provided that, (i) notwithstanding the election of the Lender to convert all or any part of the then Outstanding Principal Amount of either of the Notes, the Company shall have the right to pay in cash the entire then Outstanding Principal Amount of all Notes being converted following Lender’s notice of its election to convert the Note and prior to any such conversion, and (ii) unless Stockholder Approval has been obtained, the maximum number of shares of Common Stock of the Company that may be issued pursuant to any such permitted conversion of the Note (calculated on a fully-diluted basis) shall not be greater than 19.9% of the number of shares of Common Stock of the Company then issued and outstanding (calculated on a non-diluted basis).
“Notes” means the collective reference to the Second Note and the Fourth Note.
“Oklahoma Property” means approximately 25.01 acres of real property and premises situated in Blaine County, Oklahoma and currently owned by CPE Gathering MidCon, LLC, a Subsidiary of the Company.
“Oklahoma Property Deed” means the deed to the Oklahoma Property
“Olenox” means Olenox Industries Inc., a Delaware corporation.
“Olenox Letter of Intent” means the non-binding Letter of Intent dated January 27, 2026 pursuant to which Olenox proposes to acquire the midstream business and transportation assets of CPE Gathering MidCon, LLC ("CPE Gathering"), the owner and operator of the Omega pipeline system, an integrated crude-oil gathering, transportation, terminals and pipeline connection platform serving the Oklahoma STACK play. The transaction, valued at approximately $36 million, will be paid in a combination of cash, promissory note, common and preferred stock, and is based on $4.56 million in annual EBITDA, pursuant to a take-or-pay guarantee of the Company and its CPE Gathering Subsidiary.
5
“Origination Fee” means the sum of $30,000 payable to the Lender on the Fourth Loan Funding Date.
“Second Note” shall have the meaning as that term is defined in the Recitals.
“Third Note” shall have the meaning as that term is defined in the Recitals.
| 2. | Registration Rights Agreement. The definition of “Registrable Securities” set forth in the Registration Rights Agreement is hereby deleted and is replaced with the following definition: |
|---|
“Registrable Securities” means, as of any date of determination, (a) the Conversion Shares, (b) all Additional Make Whole Shares, to be included in the Additional Shelf Registration Statement), (c) if an Event of Default occurs and is continuing, 100% of the Maximum Conversion Shares, including all Default Make Whole Shares defined in the Loan Agreement, as amended, that are issuable upon the full conversion of the unpaid Outstanding Principal Amount of the Notes based on the Default Amount and at the applicable Conversion Price as of the date of determination, and (d) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (i) the Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (ii) such Registrable Securities have been previously sold in accordance with Rule 144, or (iii) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Lender (assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which, such securities were issued or are issuable, were at no time held by any Affiliate of the Company), as reasonably determined by the Company, upon the advice of counsel to the Company.
The definition of “Filing Date” set forth in the Registration Rights Agreement is hereby deleted and is replaced with the following definition:
“Filing Date” means, with respect to
(a) the initial Registration Statement, to be filed in accordance with the Loan Agreement and the Registration Rights Agreement regarding shares underlying the Notes, shall be July 18, 2026,
6
(b) an additional Shelf Registration Statement registering the Make Whole Shares, a date that shall be ten (10) Business Days after the Company fails to pay a Make Whole Payment in cash (the “Additional Make Whole Shelf Registration Statement”),
(c) the Default Registration Statement (which shall include the Default Make Whole Shares) required hereunder, the 10^th^ Business Day following the date the Lender declares an Event of Default under either or both Notes which has not been cured, and
(d) any additional Registration Statements which may be required to be filed pursuant to Section 2(c) or Section 3(c), no later than the 14^th^ Business Day after the need for such additional Registration Statement arises or, if later, the earliest practical date on which the Company is permitted by Commission Guidance to file such additional Registration Statement related to the Registrable Securities.”
| 3. | Lender’s Conversion Right. Notwithstanding anything to the contrary contained in the Loan Agreement, as amended hereby, or the Notes the Lender shall have the right, at any time and from time to time, to convert all or any portion of the outstanding Initial Note and/or Second Note into Conversion Shares at the then applicable Conversion Price. |
|---|---|
| 4. | Event of Default Grace Period. Section 5(a)(i) of the Notes is hereby deleted and is replaced by the following: |
| --- | --- |
“(i) beginning July 07, 2025, any default in the payment of any Principal Amount, or Default Amount (as applicable) as and when the same shall become due and payable (whether on a Scheduled Payment Date, the Maturity Date, by Mandatory Prepayment, acceleration or otherwise) which default, solely in the case of required payment of the Minimum Weekly Installment on any Scheduled Payment Date, is not fully cured within two (2) Business Days (the “Grace Period”); provided, that the Loan Parties shall only be permitted three (3) Grace Periods under this Note.”
| 5. | Additional Company Covenants. There shall be added to Article IV OTHER AGREEMENTS OF THE PARTIES in Section 4.01 (Affirmative and Negative Covenants) in the Loan Agreement, the following Sections 4.01(h), (i) and (j): |
|---|
“(h) on a date which shall be not later than 90 days following the Additional Funding Date, the Company shall call a special meeting of its stockholders for the purpose of approving the Loan Agreement and Registration Rights Agreement, as amended hereby and all other Transaction Documents, as well as all transactions with the Lender contemplated thereby and hereby.
(i) Subject to the terms of Section 2 of the Registration Rights Agreement, all Conversion Shares, Make Whole Shares, and Default Make Whole Shares issued hereunder shall be registered pursuant to an effective Registration Statement and delivered in unrestricted form via DWAC or any other means that ensures such shares are immediately salable by the Lender without volume or manner-of-sale restrictions, other than restrictions applicable under Rule 144 to Affiliates of the Company if at such time the Lender is an Affiliate of the Company.
7
(j) Until the Notes are paid in full, unless otherwise agreed in advance by the Lender in writing the Company shall not to complete any equity financing or incur any Indebtedness, other than Permitted Indebtedness, unless it first applies an amount from the gross proceeds sufficient to repay all outstanding amounts owed to the Lender, including principal, accrued interest, Make Whole Payments, and any other amounts due.
| 6. | Amendment to Fourth Forbearance Agreement. |
|---|
The Fourth Forbearance Agreement shall be amended as necessary such that the Nasdaq Reinstatement Date is changed from February 28, 2026 to April 6, 2026.
| 7. | Fourth Loan and Execution and Delivery of Fourth Loan Documents. |
|---|
On the Fourth Loan Funding Date the Lender shall fund the Fourth Loan less the Origination Fee, Holdback Amounts and legal fees set forth in the Flow of Funds Agreement, the Company shall issue the Second Note to the Lender and the Subsidiary Guarantors shall executed and amended and restated Subsidiary Guarantees in the form of Exhibit D annexed hereto.
| 8. | Conveyance of Oklahoma Property; Buy-Back Right. On or before the Fourth Funding Date, pursuant to the Oklahoma Property Deed which shall be recorded in the recorders office in Blaine County, Oklahoma, CPE Gathering shall sell, transfer and assign to the Lender all right, title and ownership interest in and to the Oklahoma Property. |
|---|
On or before the expiration of ninety (90) days from the Fourth Funding Date, the Company shall have the repurchase the Oklahoma Property from the Lender (the “Buy-Back Right”) in consideration for the payment to the lender of an amount payable in cash equal to the product of multiplying 1.325 by the total amount funded by the Lender in connection with the Fourth Loan ($750,000 or $1,000,000, as applicable); provided, however, that in the event that, for any reason or no reason, the Company shall either fail to make the scheduled installment payments required to be made as the Amended Repayment Terms under the Fourth Forbearance Agreement or pay in full the Fourth Note on its Maturity Date, such Buy-Back Right shall be forfeited and shall no longer be exercisable by the Company unless the Lender shall elect, in the exercise of its sole discretion, to extend the date of exercise of the Buy-Back Right. In such event the Lender may then elect to sell the Oklahoma Property and exercise its other rights and remedies under the Loan Agreement, as amended and the other Transaction documents.
The Fourth Forbearance Agreement is hereby amended to include therein all of the provisions of this Section 7, which are deemed incorporated by this reference into the Fourth Forbearance Agreement.
8
| 9. | “Olenox Transaction and other Liquidity Event” The final terms and conditions of the purchase agreement contemplated by the Olenox Letter of Intent shall be acceptable to the Lender and the consummation of the Olenox transaction shall be subject to the prior written approval of the Lender. In the event that the transactions contemplated by the Olenox Letter of Intent shall be consummated within ninety (90) days from the Fourth Funding Date or such later date as shall be consented to by the Lender, the Company shall (a) exercise the Buy-Back Right and pay in full the Fourth Note, and (b) as additional collateral to secure the obligations of the Company and the Subsidiary Guarantors to make the scheduled installment payments required to be made in accordance with the Amended Repayment Terms under the Third Forbearance Agreement, the Company or CPE Gathering shall pledge to the Lender $750,000 in value of Olenox common stock to be paid to the Company or CPE Gathering as partial consideration in the contemplated Olenox Letter of Intent. |
|---|
In the event that the Company or CPE Gathering shall consummate a Sale of Control, Reverse Takeover or other Liquidity event with a Person other than Olenox, the Company or CPE Gathering shall pledge to the Lender securities of the third Person party to such Liquidity Event in such amount and form as shall be reasonably acceptable to the Lender.
| 10. | Full Force and Effect and No Modification to Transaction Documents. |
|---|
Except as expressly set forth above in this Amendment Agreement all of the other terms and conditions of the Loan Agreement, the Third Forbearance Agreement as amended hereby, the Registration Rights Agreement as amended hereby, the Second Note and the Fourth Note, the Amended and Restated Subsidiary Guarantees as amended hereby, the Pledge and Security Agreement, the Transfer Agent Instructions, the Ballengee Guaranty and the other Transaction Documents issued and delivered in connection with the Loan Agreement, as amended to date, shall remain in full force and effect and are incorporated herein by this reference. In addition, the Company covenants and agrees that the Second Note, the Fourth Forbearance Agreement as amended hereby, the Subsidiary Guarantee as amended hereby, the Pledge and Security Agreement, the Registration Rights Agreement as amended hereby, and the Transfer Agent Instructions all have been complied with by the Company and to the extent applicable evidence the obligations of the other parties thereto, including the Lien and security interest of the Lender in the Collateral described in the Pledge and Security Agreement.
| 11. | Fees and Expenses. The Company shall bear the expenses of the Company and the Lender incurred in connection with the negotiation, preparation, execution, delivery and performance of this Amendment Agreement, including, without limitation, reasonable attorneys’ and consultants’ fees and expenses (including fees to Lender’s counsel of up to $10,000). This payment shall be made in accordance with the Flow of Funds Agreement. |
|---|---|
| 12. | Entire Agreement. This Amendment Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into the Transaction Documents, exhibits and schedules provided in the Loan Agreement, as amended ti date. |
| --- | --- |
9
| 13. | Successors and Assigns. This Amendment Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Amendment Agreement or any rights or obligations hereunder without the prior written consent of the Lender (other than by merger). The Lender may assign any or all of its rights under this Amendment Agreement to any Person to whom the Lender assigns or transfers any of the Notes, and/or participate any of such rights in connection with granting of any participation of the Notes, provided that such transfer or participation complies with all applicable federal and State Securities Laws and that any such transferee or participant agrees in writing by the provisions of the Transaction Documents that apply to the Lender. |
|---|---|
| 14. | WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. |
| --- | --- |
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Loan Agreement, Fourth Forbearance Agreement and Registration Rights Agreement to be duly executed by their respective authorized signatories as of the date above.
| Company: | |
|---|---|
| VIVAKOR INC. | |
| By: | |
| Name: | James Ballengee |
| Title: | Chief Executive Officer |
| Lender: | |
| J.J. ASTOR & CO. | |
| By: | |
| Name: | Michael Pope |
| Title: | Chief Executive Officer |
11
Exhibit 10.2
Exhibit A to Amendment Agreement
Junior Secured Convertible Note
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY THIS SECURITY.
| Original Issue Date: February 27, 2026 | Funding Amount | $ | 710,000 | ^1^ |
|---|---|---|---|---|
| Final Maturity Date: April 6, 2026 | Original Principal Amount: | $ | 993,750 |
VIVAKOR INC.
JUNIOR SECURED CONVERTIBLE NOTE
THIS JUNIOR SECURED CONVERTIBLE NOTE is a duly authorized and validly issued promissory note of Vivakor Inc. a Nevada corporation (the “Company”), designated as its junior secured convertible note (the “Note”).
FOR VALUE RECEIVED, the Company promises to pay to J.J. Astor & Co., (the “Lender”) or any other subsequent holder of this Note (together with the Lender, the “Holder”), the Original Principal Amount of this Note as set forth above (the “Original Principal Amount”) payable in full on the Final Maturity Date as set forth above, or such earlier date as this Note is required or permitted to be repaid as provided hereunder (as the case may be, the “Maturity Date”).
This Note is the Fourth Note, as defined in the Third Amendment to Loan Agreement, Fourth Forbearance Agreement and Registration Rights Agreement dated as of February 27, 2026 (the “Amendment Agreement”) which further amends the loan agreement between the Company and the Lender dated as of March 17, 2025, as amended (the “Loan Agreement”), and is subject to the following additional provisions.
Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note: (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement, the Amendment Agreement and in the Fourth Forbearance and Note Payment Amendment Agreement dated as of February 5, 2026 (the “Forbearance Agreement”), and (b) the following terms shall have the following meanings:
“Additional Debt Financing” shall have the meaning as that term is defined in the Loan Agreement.
| ^1^ | $750,000 less $30,000 Origination fee and $10,000 in legal fees |
|---|
“Bankruptcy Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts, (g) the Company or any Significant Subsidiary thereof admits in writing that it is generally unable to pay its debts as they become due, (h) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.
“Business Day” shall have the meaning as that term is defined in the Loan Agreement.
“Buy-Back Right” shall have the meaning as that term is defined in the Amendment Agreement.
“Change of Control Transaction” means the occurrence after the date hereof of any of: (a) an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50% of the voting securities of the Company (other than by means of conversion of Note), (b) the Company or its significant Subsidiaries merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company or its significant Subsidiaries and, after giving effect to such transaction, the stockholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of such transaction or less than 50% of the equity of its significant Subsidiaries, (c) the Company sells or transfers all or substantially all of its assets or the assets of its Subsidiaries to another Person and the stockholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the date hereof), or (e) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above. If consummated, the proposed merger with Empire Diversified Energy, Inc. that was the subject of that certain Current Report on Form 8-K filed with the Commission on March 1, 2024 shall not be considered a Change of Control Transaction.
“Commitment Shares” has the meaning as that term is defined in the Loan Agreement.
“Common Stock” and “Common Stock Equivalents” shall have the meanings as those terms are defined in the Loan Agreement.
2
“Contingent Obligation” means, with respect to any Loan Party any obligation of such Loan Party guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Loan Party of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, and (c) any obligation of such Loan Party, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Loan Party is required to perform thereunder), as determined by such Loan Party in good faith.
“Conversion Notice” shall mean a written or electronic mail notice by Lender of its intention to convert all or any portion of the Note into Conversion Shares in the substantially the form attached as Annex 1 to the Loan Agreement.
“Conversion Price” shall have the meaning as that term is defined in the Third Amendment to Loan Agreement and Fourth Forbearance Agreement and Registration Rights Agreement dated February 27, 2026.
“Conversion Shares” shall have the meaning as that term is defined in the Amendment Agreement
“Default Amount” means, with respect to the Note, the sum of: (1) the amount obtained by multiplying (x) the Outstanding Principal Amount of this Note by (y) 110% (the “Default Principal Amount”), plus (2) default interest on such Default Principal Amount at the rate of 19% per annum, compounded daily, and all other amounts, costs, expenses, and liquidated damages due under or in respect of this Note, if any.
“Equity Receipts” shall have the meaning as that term is defined in the Loan Agreement.
“Event of Default” shall have the meaning set forth in Section 5(a).
“Event of Default Conversion Price” shall have the meaning as that term is defined in the Amendment Agreement.
“Exempt Issuances” shall have the meaning as that term is defined in the Loan Agreement, as well as any issuances of the Company’s securities or assets in connection with the Olenox Transaction the final terms of which have been approved in advance by the Lender.
3
“Existing Senior Indebtedness” means Indebtedness owed by any of the Loan Parties to the Existing Senior Lenders.
“Existing Senior Lenders” shall have the meaning as that term is defined in the Loan Agreement.
“Extraordinary Receipts” shall have the meaning as that term is defined in the Loan Agreement.
“Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables and accrued expenses or other accounts payable incurred in the ordinary course of such Person’s business); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property, (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities other than obligations and liabilities that are cash collateralized on terms reasonably satisfactory to the Required Lenders; (g) all net obligations and liabilities, calculated on a basis reasonably satisfactory to the Lender and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, provided, however that if recourse in respect of any Indebtedness of the foregoing is limited to specific assets, then such Indebtedness shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the asset encumbered thereby as determined by such Person in good faith; provided further, that Indebtedness shall not include (i) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset, (ii) endorsements of checks or drafts arising in the ordinary course of business, (iii) preferred Equity Interests to the extent not constituting Disqualified Equity Interests and (iv) any earnout or similar purchase price obligation until such obligation is required to be reflected on the balance sheet of such Person in accordance with GAAP. The Indebtedness of any Person shall include the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer, so long as, in the case of a joint venture, such Indebtedness is recourse to any Loan Party. For the avoidance of doubt, “Indebtedness” shall exclude operating leases.
“Loan Agreement” means the Loan Agreement, dated as of March 17, 2025 by and among the Company and the Lender, as the original Holder of the Note, as amended, modified, or supplemented from time to time in accordance with its terms, including the Amendment Agreement.
“Loan Parties” shall have the meaning as that term is defined in Section 3.01 of the Loan Agreement.
4
“Maturity Date” shall mean the earlier to occur of (a) the occurrence of an Event of Default, or (b) April 6, 2026.
“Maximum Conversion Shares” means, after acceleration for payment of the Note following the occurrence of any Event of Default (as defined in this Note) which shall not be timely cured by the Loan Parties and the Outstanding Principal Amount of the Note shall automatically increase by 110% (a maximum of $1,093,125), shall accrue interest on such Outstanding Principal Amount at the rate of 19% per annum, compounded daily (the “Default Amount”), and upon the request of the Lender, all or any portion of such Default Amount may be converted by the Lender into that number of shares of Company Common Stock as shall be determined by (a) dividing 200% of the then increased Outstanding Principal Amount of the Note by (b) the Event of Default Conversion Price then in effect; provided that, (the maximum number of shares of Common Stock of the Company that may be issued pursuant to any such permitted conversion of the Note (calculated on a fully-diluted basis) shall not be greater than 19.9% of the number of shares of Common Stock of the Company then issued and outstanding (calculated on a non-diluted basis) unless Stockholder Approval has been obtained.
“Notes” shall mean the collective reference to this Note and the Second Note.
“Oklahoma Property” means the real property and premises situated in Blaine County, Oklahoma and currently owned by CPE Gathering MidCon, LLC, a Subsidiary of the Company, title to which has been transferred to the Lender pursuant to the Oklahoma Property Deed..
“Oklahoma Property Deed” has the meaning as that term is defined in the Amendment Agreement and constitutes Exhibit B thereto.
“Olenox” means Olenox Industries Inc., a Delaware corporation.
“Olenox Letter of Intent” has the meaning as that term is defined in the Amendment Agreement.
“Olenox Transaction” means the acquisition by Olenox or its Affiliate of the business and transportation assets of CPE Gathering MidCon, LLC (“CPE Gathering”), and the assumption of certain specified liabilities of CPE Gathering in consideration for cash and other Securities of Olenox, as set forth in the Olenox Letter of Intent or such other terms as the Company and Olenox may agree upon; and subject to the prior written approval of the Lender.
“Original Issue Date” means the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments which may be issued to evidence such Note.
“Original Principal Amount” means $993,750 as set forth on the first page of this Note
“Outstanding Principal Amount” means at any point in time the Original Principal Amount any prepayment(s) of this Note, if any.
5
“Payment Amount” means, at any point in time with respect to the Note at any time, the sum of: (a) the Original Principal Amount of this Note or the Default Amount (as applicable), at such time, less (b) any prepayments previously made, if any, plus (c) all other amounts, costs, expenses, and liquidated damages due under or in respect of this Note.
“Payment Notice” shall have the meaning as that term is defined in the Loan Agreement.
“Principal Amount” means, with respect to the Note at any time, the then Outstanding Principal Amount of such Note; provided that from and after the occurrence of an Event of Default the Principal Amount shall be the Default Amount.
“Related Party Agreement” has the meaning as that term is defined in the Loan Agreement.
“Second Note” has the meaning as that term is defined in the Amendment Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Senior Loan Agreement” shall mean any loan or credit agreement and related senior secured promissory note entered into by the Company with any of the Existing Senior Lenders and evidencing Existing Senior Indebtedness.
“Trading Market” has the meaning as that term is defined in the Loan Agreement.
“Transaction Documents” shall have the meaning as that term is defined in the Loan Agreement.
“Transfer Agent Instructions” has the meaning as that term is defined in the Loan Agreement.
“Utah Courts” shall have the meaning set forth in Section 6(d).
Section 2. Note Payment, Olenox Transaction; Buy-Back Right and Events of Default.
(a) The entire Original Principal Amount of this Note (or, if an Event of Default shall have previously occurred, the entire Default Amount) shall be immediately due and payable in full on the Maturity Date;.
(b) Notwithstanding the provisions of Section 2(a) above, provided that an Event of Default under the Amendment Agreement and the Forbearance Agreement has not previous occurred, in the event that the Olenox Transaction shall have been consummated on or prior to the Maturity Date or such later date as shall be acceptable to the Lender, then and in such event, but subject at all times to the provisions of Section 2(c) below:
(i) the Company shall exercise it Buy-Back Right and shall repurchase the Oklahoma Property from the Lender in consideration for the payment in full in cash of the entire Original Principal Amount of this Note;
(ii) the Lender shall reconvey the Oklahoma Property to Olenox or its Affiliate or as otherwise directed by the Company;
6
(iii) as additional collateral to secure the payments due under the Forbearance Agreement in accordance with the Amended Payment Terms specified therein, the Company shall pledge to the Lender $750,000 of Olenox common stock issued to the Company as partial consideration in connection with the Olenox Transaction
(c) Notwithstanding the foregoing in the event that on or before the Maturity Date an Event of Default under the Amendment Agreement this Note, the Second Note or the Forbearance Agreement shall have occurred and be continuing, the Company shall forfeit its Buy-Back Right. In such event the Lender shall have the right to exercise all of its rights and remedies under the Loan Agreement the Amendment Agreement, the Pledge and Security Agreement, including the sale of the Oklahoma Property. In the event the Oklahoma Property is sold by the Lender then the proceeds from such sale will be applied to reduce or pay in full any and all amounts the Company owes the Lender under the Notes.
(d) The Company may make payments of the Original Principal Amount of this Note either in cash or at the option of the Company in the form of Payment Shares that have been fully registered under the Securities Act and are immediately salable by Lender; provided that, (i) the Company shall give the Lender a Payment Notice not less than ten (10) Business Days advance notice to Lender of its intention to make all or any portion of this Note in the form of cash or in Payment Shares, and (ii) if the Payment Notice contemplates a cash payment, the Lender may elect to accept only Conversion Shares as payment of this Note by giving the Company five (5) Business Days advance written notice of such intention (the “Conversion Notice”). Notwithstanding the foregoing, until such time as all Conversion Shares and Payment Shares up to the Maximum Conversion Shares shall have been registered for resale pursuant to the Registration Rights Agreement and are immediately salable, the Company shall make payment of this Note only in cash. In addition, should the Company elect and be permitted to make payment in the form of Payment Shares, the provisions of Section 4.01(a) of the Loan Agreement must then be applicable on any date on which payments in Payment Shares are to be made.
(e) This Note shall be immediately payable in full upon a Change of Control Transaction, a Reverse Takeover or other Liquidity Event.
(f) The Outstanding Principal Amount of this Note, plus accrued interest hereon shall be subject to mandatory prepayment to the extent of (i) any Extraordinary Receipts or (ii) any Equity Receipts received by the Company from consummation of a the sale of Common Stock or Common Stock Equivalents, whether pursuant to a resale registration statement or upon a financing in which any investment bank shall act as underwriter or placement agent (each a “Mandatory Prepayment”).
(g) From and after the occurrence of an Event of Default, the Outstanding Principal Amount of this Note shall increase to the Default Amount and this Note shall bear interest accruing at nineteen percent (19%) per annum, calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, and shall accrue daily until payment in full of the Default Amount.
Section 3. Registration of Transfers and Exchanges.
(a) Different Denominations. This Note is exchangeable for an equal aggregate Principal Amount of Note of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.
7
(b) Investment Representations. This Note has been issued subject to certain investment representations of the original Holder set forth in the Loan Agreement and may be transferred or exchanged only in compliance with the Loan Agreement and applicable federal and state securities laws and regulations.
(c) Reliance on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered on the official Note register of the Company as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
Section 4. Covenants. As long as any portion of this Note remains outstanding, unless the Lender shall have otherwise given prior written consent, the Company shall not, and shall not permit CPE Gathering or any of its other direct or indirect Subsidiaries to, directly or indirectly:
(a) violate any of the affirmative or negative covenants set forth in Section 2 of this Note, the Loan Agreement, the Amendment Agreement, the Forbearance Agreement or other Transaction Documents;
(b) issue and securities, Common Stock or Common Stock Equivalents, other than Exempt Issuances;
(c) amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of holders of Note (for the avoidance of doubt, a reverse stock split of the Company’s common stock will not be deemed to materially affect the Lender);
(d) amend, restate or otherwise modify any of the existing terms of any outstanding Indebtedness, including Senior Indebtedness, Related Party Indebtedness or the Related Party Agreement, whether or not set forth in the Company Disclosure Schedule;
(e) issue, repay, repurchase or offer to repay, repurchase or otherwise acquire shares of Common Stock or Common Stock Equivalents, except to the extent that they are expressly permitted under the Loan Agreement;
(f) incur, repay, repurchase or offer to repay, repurchase or otherwise acquire any Indebtedness, other than Senior Indebtedness and other Permitted Indebtedness or as otherwise expressly permitted under the Loan Agreement, provided that, except for Senior Indebtedness, such payments shall not be permitted if, at such time, or after giving effect to such payment, any Event of Default exist or occur;
(g) grant or suffer to exist any Liens on its property or assets, other than Liens encumbering Senior Indebtedness and other Permitted Liens;
(h) pay cash dividends or distributions on any equity securities of the Company (except to the holders of the Company’s Series A Preferred Stock); or
(i) enter into any transaction with any Affiliate of the Company, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval); or
(j) enter into any agreement or commitment with respect to any of the foregoing.
8
Section 5. Events of Default.
(a) “Event of Default” means, wherever used herein, the occurrence of any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):
(i) any default in the payment of any Principal Amount, or Default Amount (as applicable) as and when the same shall become due and payable (whether on the Maturity Date, by Mandatory Prepayment, acceleration or otherwise) which payment default, is not fully cured within two (2) Business Days (the “Grace Period”);
(ii) the Company shall fail to observe or perform any other covenant or agreement contained in this Note, the Loan Agreement, the Amendment Agreement, the Notes, the Forbearance Agreement or other Transaction Documents, which failure is not cured, if possible to cure, within the earlier to occur of (A) two (2) Business Days after notice of such failure sent by the Holder or by any other holder of Note to the Company and (B) five (5) Business Days after the Company has become or should have become aware of such failure;;
(iii) a breach or violation of any Related Party to its or their covenants and agreements set forth in the Related Party Agreement;
(iv) a default or event of default (subject to any notice, grace or cure period provided in the applicable agreement, document or instrument) shall occur under (A) any of the Transaction Documents, including the Subsidiary Guarantee or the Security Agreement constituting exhibits to the Amendment Agreement, or (B) any other material agreement, lease, document or instrument to which the Company, CPE Gathering or any other Subsidiary is obligated (and not covered by clause (vi) below);
(v) a Senior Lender or other holder of Senior Indebtedness shall declare a default under any Senior Loan Agreement and accelerate payment of the Senior Indebtedness;
(vi) any representation or warranty made in this Note, any other Transaction Documents, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in any material respect as of the date when made;
(vii) the Company shall breach or violate in material any respect the provisions of the Related Party Agreement, the Registration Rights Agreement, or the Transfer Agent Instructions;
(viii) the Company shall violate any of the provisions of Section 2 or Section 7(e) of the Forbearance Agreement;
(ix) the Company, CPE Gathering or any other Subsidiary shall be subject to a Bankruptcy Event;
9
(x) the Company shall default on any of its obligations under any mortgage, credit agreement or other facility, indenture agreement, capital lease, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness for borrowed money or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $100,000, whether such Indebtedness now exists or shall hereafter be created, and (b) results in such Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable;
(xi) a final non-appealable judgment by any competent court for the payment of money in an amount of at least $150,000 is rendered against the Company, and the same remains undischarged and unpaid for a period of 45 days during which execution of such judgment is not effectively stayed;
(xii) the Company shall be delinquent in the filing of any of its SEC Reports, including its Form 8-K, interim reports or Form 10-Q quarterly report or Form 10-K annual financial reports required to be filed with the Commission under the Exchange Act (beyond any period of grace granted by the Commission with respect thereto); or
(xiii) in the event that by April 6, 2026, the Common Stock shall not have been relisted and reinstated for trading on the Nasdaq Capital Market.
(b) Remedies Upon Event of Default. If any Event of Default occurs and is continuing, this Note shall become, at the Holder’s election, immediately due and payable in the Default Amount, and the Holder shall have the right, to convert all or any portion of this Note into Conversion Shares at the applicable Conversion Price up to the Maximum Conversion Shares or such number of Conversion Shares based on the then Default Amount of this Note, and shall be entitled to exercise its rights and remedies in connection therewith under the other Transaction Documents, including enforcing its rights under the Subsidiary Guarantee and Security Agreement. Upon the conversion in full of the Default Amount in accordance with the terms of this Note, the Holder shall promptly surrender this Note to or as directed by the Company. In connection with such acceleration or exercise described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this section 5(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
Section 6. Miscellaneous.
(a) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder shall be in writing and delivered personally, by email attachment, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth on in the Loan Agreement, or such other, email address, or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 6(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email address or address of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Loan Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of: (i) the date of transmission, if such notice or communication is delivered via facsimile at
10
the facsimile number or email attachment to the email address set forth on the signature pages attached hereto prior to 5:30 p.m. (Eastern time) on any date, (ii) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m. (Eastern time) on any Business Day, (iii) the second Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
(b) Absolute Obligation, Security and Ranking. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company and is secured by and under the Subsidiary Guarantee and Security Agreement. This Note is a d direct debt obligation of the Company, and ranks (i) pari passu with all other Notes (if any) now or hereafter issued to the Lender under the terms of the Loan Agreement, (ii) junior to all Existing Senior Indebtedness, and (iii) senior to all other evidence of Indebtedness of the Company or any of its Subsidiaries that is not Existing Senior Indebtedness.
(c) Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the Principal Amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.
(d) Arbitration of Disputes. In the event and to the extent that a claim or dispute arises out of, or in relation to this Agreement or any other Transaction Document, including without limitation, the terms, construction, interpretation, performance, termination, breach, or enforceability of this Agreement or such Transaction Document(s), the Parties hereby each agree that the claim or dispute shall be, at the election of any Party within thirty (30) days after the claim or dispute arises, resolved by mandatory binding arbitration in Utah, except that Lender may, at its election, maintain any action for equitable relief in the Third Judicial District, Salt Lake County, Utah, including seeking the appointment of a receiver, judicial foreclosure, an accounting of Collateral, restraining orders or injunctions or other equitable relief without a right to compel arbitration by the Company or any Subsidiary Guarantor. To the extent that an arbitration occurs, the Parties agree that the arbitration shall be administered by JAMS and the arbitration shall be conducted in accordance with the Expedited Procedures of the JAMS Comprehensive Arbitration Rules and Procedures except as otherwise agreed in this Agreement. The arbitrator shall be chosen in accordance with the procedures of JAMS, and shall base the award on applicable Utah law, and in connection therewith each of the Loan Parties hereby expressly waive any right to seek an exemption from Utah law based on any public policies or principles of any other State. The Parties agree that the arbitration shall be conducted before a single arbitrator. Judgment on the award may be entered in any federal or state court in the State of Utah and in the federal courts of any other State. The Parties further agree that the costs of the arbitration shall be divided equally between the Company and the Lender until a prevailing Party is determined, at which time the non-prevailing Party shall be charged the prevailing Party’s share of the arbitration fees. Each Party may pursue arbitration solely in an individual capacity, and not as a representative or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one Person’s claims and may not otherwise preside over any form of a representative or class proceeding. This arbitration section is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.
11
(e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of Utah, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the County of Salt Lake, Utah (the “Utah Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Utah Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, Action or Proceeding, any claim that it is not personally subject to the jurisdiction of such Utah Courts, or such Utah Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an Action or Proceeding to enforce any provisions of this Note, then the prevailing party in such Action or Proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such Action or Proceeding.
(f) Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Company or the Holder must be in writing.
(g) Severability. If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.
12
(h) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.
(i) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
(j) Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.
Section 7. Amendments; Waivers. Any modifications, amendments or waivers of the provisions hereof shall be subject to Section 5.05 of the Loan Agreement.
Balance of this page left blank – signature page follows
13
IN WITNESS WHEREOF, the Company has caused this Junior Secured Note to be duly executed by a duly authorized officer as of the date and year first above indicated.
| VIVAKOR INC. | |
|---|---|
| By: | |
| Name: | James Ballengee |
| Title: | Chief Executive Officer |
14
Exhibit 10.3
Exhibit C to Amendment Agreement
AMENDED AND RESTATED
SUBSIDIARY GUARANTEE
THIS AMENDED AND RESTATED SUBSIDIARY GUARANTEE, dated as of February 27, 2026 (this “Guarantee”), made by each of VivakorSupply & Trading, LLC, a Texas limited liability company, Silver Fuels Processing, LLC, a Texas limited liability company,Silver Fuels Delhi, LLC, a Texas limited liability company, White Claw Colorado City, LLC, a Texas limited liability company,VivaVentures Remediation Corp., a Texas corporation, Endeavor Crude, LLC, a Texas limited liability company, CPE Gathering Midcon,LLC, a Delaware limited liability company, RPC Design & Manufacturing, LLC, a Utah limited liability company, VivakorAdministration, LLC, a Texas limited liability company, and ET EmployeeCo, LLC, a Delaware limited liability company (together with any other entity that may become a party hereto as an Additional Subsidiary Guarantors as provided in Annex 1 hereto (individually a “Subsidiary Guarantor” and collectively the “Subsidiary Guarantors”), in favor of the J.J.Astor & Co., a Utah corporation (together with its permitted assigns, the “Lender”), to that certain Loan Agreement, dated as of March 17, 2025, by and among Vivakor, Inc., a Nevada corporation (the “Company”) and the Lender (the “Loan Agreement”), as previously amended and as further amended by (a) that certain Third Amendment to Loan Agreement, Fourth Forbearance Agreement and Registration Rights Agreement dated February 27, 2026 (the “Amendment”), and (b) that certain fourth Forbearance, Note Payment and Registration Rights Amendment Agreement dated as of February 5, 2026 (the “Fourth Forbearance Agreement” and together with the Amendment Agreement, the “Loan Agreement Amendments”)
W I T N E S S E T H:
WHEREAS, the Recitals set forth in the Amendment Agreement are incorporated by this reference herein; and
WHEREAS, the Company now desires to borrow up to an additional $1,000,000, with an initial funding of $750,000 and a potential additional funding of $250,000 (the “Fourth Loan”) and the Lender is willing to advance such Fourth Loan, subject to (a) the execution and delivery of this Amendment to the Loan Agreement, (b) the Company’s issuance to the Lender an additional junior secured convertible promissory note in Original Issue Amount equal to 1.325 times the amount funded under the Fourth Loan, that shall be due and payable in full on a date which shall be ninety (90) days from the Effective Date and which shall be in the form of Exhibit A-3 annexed to the Amendment Agreement (the **“**Fourth Note”), (c) the transfer to the Lender of all right, title and interest owned by CPE Gathering Midcon LLC, a Delaware Limited Liability Company in and to approximately 25.01 acres of real property and premises situated in Blaine County, Oklahoma, pursuant to the Oklahoma Property Deed in the form of Exhibit B annexed to the Amendment Agreement \ (the “Oklahoma Property Deed”) and (d) the personal guaranty of James Ballengee of payment of the Fourth Note in the form of Exhibit C annexed hereto and made a part hereof (the “Ballengee Guaranty”).
WHEREAS, the Second Note that is currently issued and outstanding and the Fourth Note are collectively referred to herein as the “Notes”; and
WHEREAS, the Subsidiary Guarantors will directly benefit from the extension of the Loan to the Company represented by the issuance of the Notes;
NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the Amendment Agreement and Forbearance Agreement and to carry out the transactions contemplated thereby, each of the Subsidiary Guarantors hereby agree with the Lender as follows:
1. Definitions. This Guarantee amends and restates in its entirety the Subsidiary Guarantee dated March 17, 2025, as amended. Unless otherwise defined herein, terms defined in the Loan Agreement and the Notes, when used herein, shall have the meanings given to them in the Loan Agreement and the Notes. The words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import when used in this Guarantee shall refer to this Guarantee as a whole and not to any particular provision of this Guarantee, and Section and Schedule references are to this Guarantee unless otherwise specified. The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. The following terms shall have the following meanings:
“Guarantee” means this Subsidiary Guarantee, as the same may be amended, supplemented or otherwise modified from time to time.
“Obligations” means, in addition to all other costs and expenses of collection incurred by Lender in enforcing any of such “Obligations” (as defined in the Security Agreement) and/or this Guarantee, all of the liabilities and obligations (primary, secondary, direct, contingent, sole, joint or several) due or to become due, or that are now or may be hereafter contracted or acquired, or owing to, of the Company or any Subsidiary Guarantors to the Lender under the Loan Agreement, this Guarantee, the Notes, the Security Agreement and/or any other Transaction Documents, instruments, agreements or other documents executed and/or delivered in connection herewith or therewith, in each case, whether now or hereafter existing, voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from the Lender as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time. Without limiting the generality of the foregoing, the term “Obligations” shall include, without limitation: (i) principal of, and interest on the Notes and the Loan extended pursuant thereto (including the Default Payments), (ii) any and all other fees, indemnities, costs, obligations and liabilities of the Company or any Subsidiary Guarantors from time to time under or in connection with the Loan Agreement, this Guarantee, the Notes, the other Transaction Documents and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith, (iii) all covenants and agreements of the Loan Parties under the Transaction Documents and (iv) all amounts (including but not limited to post-petition interest) in respect of the foregoing that would be payable but for the fact that the obligations to pay such amounts are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company or any Subsidiary Guarantors.
2
- Guarantee.
(a) Guarantee.
(i) Each of the undersigned Subsidiary Guarantors do hereby unconditionally and irrevocably, guarantee to the Lender and their respective Affiliates, successors, endorsees, transferees and assigns, the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(ii) Each of the Subsidiary Guarantors agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Subsidiary Guarantors hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Lender hereunder.
(iii) The guarantee contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of the Subsidiary Guarantors under the guarantee contained in this Section 2 shall have been satisfied by indefeasible payment in full.
(iv) No payment made by the Company, the Subsidiary Guarantors, any other guarantor or any other Person or received or collected by the Lender from the Company, the Subsidiary Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Subsidiary Guarantors hereunder which shall, notwithstanding any such payment (other than any payment made by such Subsidiary Guarantors in respect of the Obligations or any payment received or collected from such Subsidiary Guarantors in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Subsidiary Guarantors hereunder until the Obligations are indefeasibly paid in full.
(v) Notwithstanding anything to the contrary in this Guarantee, with respect to any defaulted non-monetary Obligations the specific performance of which by the Subsidiary Guarantors is not reasonably possible (e.g., the issuance of the Company’s Common Stock), the Subsidiary Guarantors shall only be liable for making the Lender whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the Transaction Documents.
3
(b) Right of Contribution. Subject to Section 2(c), each of the Subsidiary Guarantors agrees that to the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against any of the other Subsidiary Guarantors hereunder which has not paid its proportionate share of such payment. The Subsidiary Guarantors’ right of contribution shall be subject to the terms and conditions of Section 2(c). The provisions of this Section 2(b) shall in no respect limit the obligations and liabilities of any Subsidiary Guarantors to the Lender and the Subsidiary Guarantors shall remain liable to the Lender for the full amount guaranteed by such Subsidiary Guarantors hereunder until the indefeasible repayment in full of all amounts owed under the Loan Agreement, the Notes and the other Transaction Documents.
(c) No Subrogation. Notwithstanding any payment made by any Subsidiary Guarantors hereunder or any set-off or application of funds of any Subsidiary Guarantors by the Lender, none of the Subsidiary Guarantors shall be entitled to be subrogated to any of the rights of the Lender against the Company or any Subsidiary Guarantors or any collateral security or guarantee or right of offset held by the Lender for the payment of the Obligations, nor shall any Subsidiary Guarantors seek or be entitled to seek any contribution or reimbursement from the Company or any Subsidiary Guarantors in respect of payments made by such Subsidiary Guarantors hereunder, until all amounts owing to the Lender by the Company on account of the Obligations are indefeasibly paid in full. If any amount shall be paid to any Subsidiary Guarantors on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Subsidiary Guarantors in trust for the Lender, segregated from other funds of such Subsidiary Guarantors, and shall, forthwith upon receipt by such Subsidiary Guarantors, be turned over to the Lender in the exact form received by such Subsidiary Guarantors (duly indorsed by such Subsidiary Guarantors to the Lender, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Lender may determine.
(d) Amendments, Etc. With Respect to he Obligations. The Subsidiary Guarantors shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Subsidiary Guarantors and without notice to or further assent by any Subsidiary Guarantors, any demand for payment of any of the Obligations made by the Lender may be rescinded by the Lender and any of the Obligations continued, and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Lender, and the Loan Agreement and the other Transaction Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Lender may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. The Lender shall have no obligation to protect, secure, perfect or insure any Lien at any time held by them as security for the Obligations or for the guarantee contained in this Section 2 or any property subject thereto.
4
(e) Guarantee Absolute and Unconditional. Each of the Subsidiary Guarantors waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Company and the Subsidiary Guarantors, on the one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. The Subsidiary Guarantors waives to the extent permitted by law diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Company or the Subsidiary Guarantors with respect to the Obligations. The Subsidiary Guarantors understands and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance without regard to: (a) the validity or enforceability of the Loan Agreement or any other Transaction Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance or fraud by Lender) which may at any time be available to or be asserted by the Company or any other Person against the Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Company or such Subsidiary Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Company for the Obligations, or of such Subsidiary Guarantors under the guarantee contained in this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Subsidiary Guarantors, the Lender may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as they may have against the Company, any Subsidiary Guarantors or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the Company, any Subsidiary Guarantors or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Company, any Subsidiary Guarantors or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Subsidiary Guarantors of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against any Subsidiary Guarantors. For the purposes hereof, “demand” shall include the commencement and continuance of any legal proceedings.
(f) Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any Subsidiary Guarantors, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any Subsidiary Guarantors or any substantial part of its property, or otherwise, all as though such payments had not been made.
(g) Payments. The Subsidiary Guarantors hereby guarantees that payments hereunder will be paid to the Lender without set-off or counterclaim in U.S. dollars at the address set forth or referred to in the Signature Pages to the Loan Agreement.
5
3. Representations and Warranties. Each of the Subsidiary Guarantors hereby makes the following representations and warranties to Lender as of the date hereof:
(a) Organization and Qualification. Such Subsidiary Guarantor is duly organized, validly existing and in good standing under the laws of the applicable jurisdiction set of its incorporation or other organization, with the requisite corporate power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Subsidiary Guarantors have no material Subsidiaries, unless such Subsidiaries are also a named Subsidiary Guarantor. Each of the Subsidiary Guarantors is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not, individually or in the aggregate, (x) adversely affect the legality, validity or enforceability of any of this Guarantee in any material respect, (y) have a material adverse effect on the results of operations, assets, prospects, or financial condition of the Subsidiary Guarantors, or (z) adversely impair in any material respect the Subsidiary Guarantors’ ability to perform fully on a timely basis its obligations under this Guarantee (a “Material Adverse Effect”).
(b) Authorization; Enforcement. Each of the Subsidiary Guarantors has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Guarantee, and otherwise to carry out its obligations hereunder. The execution and delivery of this Guarantee by the Subsidiary Guarantors and the consummation by it of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Subsidiary Guarantors. This Guarantee has been duly executed and delivered by each of the Subsidiary Guarantors and constitutes the valid and binding obligation of each of the Subsidiary Guarantors enforceable against such Subsidiary Guarantors in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
(c) No Conflicts. Except as disclosed in the Disclosure Schedules to the Loan Agreement, the execution, delivery and performance of this Guarantee by the Subsidiary Guarantors and the consummation by the Subsidiary Guarantors of the transactions contemplated thereby do not and will not: (i) conflict with or violate any provision of its Certificate of Incorporation, other organizational documents or By-laws or (ii) conflict with, constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Subsidiary Guarantors is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Subsidiary Guarantors is subject (including Federal and State securities laws and regulations), or by which any material property or asset of the Subsidiary Guarantors is bound or affected, except in the case of each of clauses (ii) and (iii), such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as could not, individually or in the aggregate, have or result in a Material Adverse Effect. The business of the Subsidiary Guarantors is not being conducted in violation of any law, ordinance or regulation of any governmental authority, except for violations which, individually or in the aggregate, do not have a Material Adverse Effect.
6
(d) Consents and Approvals. Except as disclosed in the Disclosure Schedules to the Loan Agreement, none of the Subsidiary Guarantors is required to obtain any consent, waiver, authorization or order of, or make any filing or registration with, any court or other federal, state, local, foreign or other governmental authority or other person in connection with the execution, delivery and performance by the Subsidiary Guarantors of this Guarantee.
(e) Loan Agreement. The representations and warranties of the Company set forth in the Loan Agreement as they relate to such Subsidiary Guarantors, each of which is hereby incorporated herein by reference, are true and correct as of each time such representations are deemed to be made pursuant to such Loan Agreement, and the Lender shall be entitled to rely on each of them as if they were fully set forth herein, provided that each reference in each such representation and warranty to the Company’s knowledge shall, for the purposes of this Section 3, be deemed to be a reference to such Subsidiary Guarantors’ knowledge.
(f) Foreign Law. The Subsidiary Guarantors has consulted with appropriate foreign legal counsel with respect to any of the above representations for which non-U.S. law is applicable. Such foreign counsel has advised each applicable Subsidiary Guarantors that such counsel knows of no reason why any of the above representations would not be true and accurate. Such foreign counsel was provided with copies of this Subsidiary Guarantee and the Transaction Documents prior to rendering their advice.
- Covenants.
(a) Each of the Subsidiary Guarantors covenants and agrees with the Lender that, from and after the date of this Guarantee until the Obligations shall have been indefeasibly paid in full, such Subsidiary Guarantors shall take, and/or shall refrain from taking, as the case may be, each commercially reasonable action that is necessary to be taken or not taken, as the case may be, so that no Event of Default (as defined in the Notes) is caused by the failure to take such action or to refrain from taking such action by such Subsidiary Guarantors.
(b) So long as any of the Obligations are outstanding, unless the Lender shall otherwise consent in writing in advance, none of the Subsidiary Guarantors shall directly or indirectly on or after the date of this Guarantee:
i. other than Permitted Indebtedness (as defined in the Loan Agreement and the Notes), enter into, create, incur, assume or suffer to exist any Indebtedness for borrowed money of any kind, including but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom; other than Permitted Liens, enter into, create, incur, assume or suffer to exist any liens of any kind, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;
7
ii. amend its certificate of incorporation, bylaws or other organizational documents without the prior written consent of the Lender in the exercise of its sole discretion;
iii. repay, repurchase or offer to repay, repurchase or otherwise acquire shares of its securities or debt obligations, except as expressly permitted in the Loan Agreement or the Notes;
iv. pay cash dividends on any equity securities of such Subsidiary Guarantors other than dividends paid to another Subsidiary Guarantors or to the Company;
v. except as disclosed in the Loan Agreement, enter into any transaction with any Affiliate of the Subsidiary Guarantors which would be required to be disclosed in any public filing of the Company with the Commission, unless such transaction is made on an arm’s-length basis and expressly approved by the Lender and a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval); or
vi. enter into any agreement with respect to any of the foregoing.
- Miscellaneous.
(a) Amendments in Writing. None of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise modified except in writing by the Lender holding a majority in principal amount of the outstanding Notes.
(b) Notices. All notices, requests and demands to or upon the Lender or any Subsidiary Guarantors hereunder shall be effected in the manner provided for in the Loan Agreement, provided that any such notice, request or demand to or upon any Subsidiary Guarantors shall be addressed to such Subsidiary Guarantors at its notice address set forth on Schedule 5(b).
(c) No Waiver By Course Of Conduct; Cumulative Remedies. The Lender shall not by any act (except by a written instrument pursuant to Section 5(a)), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any default under the Transaction Documents or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Lender would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8
(d) Enforcement Expenses; Indemnification.
(i) The Subsidiary Guarantors agrees to pay, or reimburse the Lender for, all its costs and expenses incurred in collecting against such Subsidiary Guarantors under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Guarantee and the other Transaction Documents to which such Subsidiary Guarantors is a party, including, without limitation, the reasonable fees and disbursements of counsel to the Lender.
(ii) The Subsidiary Guarantors agrees to pay, and to save the Lender harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable in connection with any of the transactions contemplated by this Guarantee.
(iii) The Subsidiary Guarantors agrees to pay, and to save the Lender harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Guarantee to the extent the Company would be required to do so pursuant to the Loan Agreement.
(iv) The agreements in this Section shall survive repayment of the Obligations and all other amounts payable under the Loan Agreement and the other Transaction Documents.
(e) Successor and Assigns. This Guarantee shall be binding upon the successors and assigns of the Subsidiary Guarantors and shall inure to the benefit of the Lender and their respective successors and assigns; provided that no Subsidiary Guarantors may assign, transfer or delegate any of its rights or obligations under this Guarantee without the prior written consent of the Lender.
(f) Set-Off. The Subsidiary Guarantors hereby irrevocably authorizes each Investor at any time and from time to time while an Event of Default under any of the Transaction Documents shall have occurred and be continuing, without notice to such Subsidiary Guarantors or any Subsidiary Guarantors, any such notice being expressly waived by the Subsidiary Guarantors, to set-off and appropriate and apply any and all deposits, credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Investor to or for the credit or the account of such Subsidiary Guarantors, or any part thereof in such amounts as such Investor may elect, against and on account of the obligations and liabilities of such Subsidiary Guarantors to the Investor hereunder and claims of every nature and description of such Investor against such Subsidiary Guarantors, in any currency, whether arising hereunder, under the Loan Agreement, any other Transaction Document or otherwise, as such Investor may elect, whether or not such Investor has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. A Investor shall notify such Subsidiary Guarantors and the Agent named in the Security Agreement promptly of any such set-off and the application made by such Investor of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Lender may have.
9
(g) Counterparts. This Guarantee may be executed by one or more of the parties to this Guarantee on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
(h) Severability. Any provision of this Guarantee which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(i) Section Headings. The Section headings used in this Guarantee are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
(j) Integration. This Guarantee and the other Transaction Documents represent the agreement of the Subsidiary Guarantors and the Lender with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Lender relative to subject matter hereof and thereof not expressly set forth or referred to herein or in the other Transaction Documents.
(k) Governing Laws. All questions concerning the construction, validity, enforcement and interpretation of this Guarantee shall be governed by and construed and enforced in accordance with the internal laws of the State of Utah, without regard to the principles of conflict of laws thereof. The Subsidiary Guarantors agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the federal and state courts sitting in the County of Salt Lake, Utah (the “Utah Courts”). The Subsidiary Guarantors hereby irrevocably submits to the exclusive jurisdiction of the Utah Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of this Guarantee), and hereby irrevocably waives, and agrees not to assert in any suit, Action or Proceeding, any claim that it is not personally subject to the jurisdiction of such Utah Courts, or such Utah Courts are improper or inconvenient venue for such proceeding. The Subsidiary Guarantors hereby irrevocably waives personal service of process and consents to process being served in any such suit, Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Guarantee and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. The Subsidiary Guarantors hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Guarantee or the transactions contemplated hereby. If any party shall commence an Action or Proceeding to enforce any provisions of this Guarantee, then the prevailing party in such Action or Proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such Action or Proceeding.
10
(l) Acknowledgements. Each of the Subsidiary Guarantors hereby acknowledges that:
(i) it has been advised by counsel in the negotiation, execution and delivery of this Guarantee and the other Transaction Documents to which it is a party;
(ii) the Lender has no fiduciary relationship with or duty to any Subsidiary Guarantors arising out of or in connection with this Guarantee or any of the other Transaction Documents, and the relationship between the Subsidiary Guarantors, on the one hand, and the Lender, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(iii) no joint venture is created hereby or by the other Transaction Documents or otherwise exists by virtue of the transactions contemplated hereby among the Subsidiary Guarantors and the Lender.
(m) Additional Subsidiary Guarantors. The Company shall cause each of its subsidiaries formed or acquired on or subsequent to the date hereof to become a Subsidiary Guarantors for all purposes of this Guarantee by executing and delivering an Assumption Agreement in the form of Annex 1 hereto. In addition, upon the occurrence and during the continuation of an Event of Default under the Loan Documents, the Foreign Subsidiaries of the Company shall become Subsidiary Guarantors for all purposes of this Guarantee and shall execute and deliver the Assumption Agreement in the form of Annex 1 hereto.
(n) Release of Subsidiary Guarantors. The Subsidiary Guarantors will be released from all liability hereunder concurrently with the indefeasible repayment in full of all amounts owed under the Loan Agreement, the Notes and the other Transaction Documents.
(o) Seniority. The Obligations of each of the Subsidiary Guarantors hereunder rank senior in priority to any other Indebtedness (as defined in the Loan Agreement) of such Subsidiary Guarantors, except Indebtedness owed to Existing Senior Lenders, as defined in the Loan Agreement.
(p) WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
(q) Completeness. By its execution of this Guarantee, the Company represents, warrants and covenants that the undersigned entities designated as Subsidiary Guarantors are all of the Subsidiaries of the Company.
* * * * * * * * * * * * * * * * * * * * *
(Signature Pages Follow)
11
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly executed and delivered as of the date first above written.
| SUBSIDIARY GUARANTORS: | |
|---|---|
| SILVER FUELS DELHI, LLC, | |
| a Louisiana limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| WHITE CLAW COLORADO CITY LLC, | |
| --- | --- |
| a Texas limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| VIVAVENTURES REMEDIATION CORPORATION, | |
| --- | --- |
| a Texas corporation | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| VIVAKOR SUPPLY & TRADING, LLC., | |
| --- | --- |
| a Nevada corporation | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
12
| ENDEAVOR CRUDE, LLC, | |
|---|---|
| a Texas limited liability | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| MERIDIAN EQUIPMENT LEASING LLC, | |
| --- | --- |
| a Texas limited liability company, | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| SILVER FUELS PROCESSING LLC, | |
| --- | --- |
| a Texas limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| CPE GATHERING MIDCON, LLC, | |
| --- | --- |
| a Delaware limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
13
| EQUIPMENT TRANSPORT, LLC, | |
|---|---|
| a Pennsylvania limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| RPC DESIGN & MANUFACTURING, LLC, | |
| --- | --- |
| a Utah limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| VIVAKOR ADMINSTRATION, LLC, | |
| --- | --- |
| a Texas limited liability company | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| ET EMPLOYEECO, LLC, | |
| --- | --- |
| a Delaware limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| ACCEPTED AND AGREED TO: | |
| --- | --- |
| Vivakor, Inc. | |
| By: | |
| Name: | James Ballengee |
| Title: | Chief Executive Officer |
14
Annex 1 to
SUBSIDIARY GUARANTEE
ASSUMPTION AGREEMENT, dated as of _____________, 202___ is made by ________________________, a________________ _________________ (the “Additional Subsidiary Guarantors”), in favor of the Lender pursuant to the Loan Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in such Loan Agreement.
W I T N E S S E T H:
WHEREAS, Vivakor Inc., a Nevada corporation (the “Company”), and the Lender have entered into that certain Loan Agreement, dated as of March [__], 2025 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”);
WHEREAS, in connection with the Loan Agreement, [____________________], a [__________________] and a Subsidiary of the Company have entered into the Subsidiary Guarantee, dated as March [__], 2025 (as amended, supplemented or otherwise modified from time to time, the “Guarantee”) in favor of the Lender;
WHEREAS, the Loan Agreement requires the Additional Subsidiary Guarantors to become a party to the Guarantee; and
WHEREAS, the Additional Subsidiary Guarantors has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee. By executing and delivering this Assumption Agreement, the Additional Subsidiary Guarantors, as provided in Section 5(m) of the Guarantee, hereby becomes a party to the Guarantee as a Subsidiary Guarantors thereunder with the same force and effect as if originally named therein as a Subsidiary Guarantors and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Subsidiary Guarantors thereunder. The Additional Subsidiary Guarantors hereby represents and warrants that each of the representations and warranties contained in Section 3 of the Guarantee is true and correct on and as the date hereof as to such Additional Subsidiary Guarantors (after giving effect to this Assumption Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF UTAH.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
[SIGNATURE - ADDITIONAL GUARANTOR]
15
Exhibit 10.4
Exhibit D to Amendment Agreement
PLEDGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of February 27, 2026 (this “Agreement”), made by each of Vivakor Supply & Trading, LLC, a Texas limited liability company, Silver Fuels Processing, LLC, a Texas limited liability company, Silver Fuels Delhi, LLC, a Texas limited liability company, White Claw Colorado City, LLC, a Texas limited liability company, VivaVentures Remediation Corp., a Texas corporation, Endeavor Crude, LLC, a Texas limited liability company, CPE Gathering Midcon, LLC, a Delaware limited liability company, RPC Design & Manufacturing, LLC, a Utah limited liability company, Vivakor Administration, LLC, a Texas limited liability company, and ET EmployeeCo, LLC, a Delaware limited liability company (together with any other entity that may become a party hereto as an Additional Subsidiary Guarantors as provided in Annex 1 hereto (individually a “Subsidiary Guarantor” and collectively the “Subsidiary Guarantors”), in favor of the J.J. Astor & Co., a Utah corporation (together with its permitted assigns, the “Lender”), to that certain Loan Agreement, dated as of March 17, 2025, by and among Vivakor, Inc., a Nevada corporation (the “Company”) and the Lender (the “Loan Agreement”), as previously amended and as further amended by (a) that certain Third Amendment to Loan Agreement, Fourth Forbearance Agreement and Registration Rights Agreement dated February 27, 2026 (the “Amendment Agreement”), and (b) that certain fourth Forbearance, Note Payment and Registration Rights Amendment Agreement dated as of February 27, 2026 (the “Fourth Forbearance Agreement” and together with the Amendment Agreement, the “Loan Agreement Amendments”).
W I T N E S S E T H:
WHEREAS, the Recitals set forth in the Amendment Agreement are incorporated by this reference herein; and
WHEREAS, personal guarantyow desires to borrow up to an additional $1,000,000, with an initial funding of $750,000 and a potential additional funding of $250,000 (the “Fourth Loan”) and the Lender is willing to advance such Fourth Loan, subject to (a) the execution and delivery of this Amendment to the Loan Agreement, (b) the Company’s issuance to the Lender an additional junior secured convertible promissory note in Original Issue Amount equal to 1.325 times the amount funded under the Fourth Loan, that shall be due and payable in full on a date which shall be ninety (90) days from the Effective Date and which shall be in the form of ExhibitA-3 annexed to the Amendment Agreement (the **“**Fourth Note”), (c) the transfer to the Lender of all right, title and interest owned by CPE Gathering Midcon LLC, a Delaware Limited Liability Company in and to the real property and improvements situated in Blaine County, Oklahoma, pursuant to the Oklahoma Property Deed in the form of Exhibit B annexed to the Amendment Agreement (the “Oklahoma Property Deed”) (d) the Amended and Restated Subsidiary Guarantee in the form of ExhibitC annexed to the Amendment and (e) the personal guaranty of James Ballengee of payment of the Fourth Note in the form of ExhibitE annexed to the Amendment Agreement and made a part hereof (the “Ballengee Guaranty”).
WHEREAS, the Second Note that is currently issued and outstanding and the Fourth Note are collectively referred to herein as the “Notes”; and
WHEREAS, pursuant to the Amended and Restated Subsidiary Guarantee Agreement, the Existing Subsidiaries have unconditionally guaranteed payment of the Notes and performance by the Company of its covenants and agreements set forth in the Amendment Agreement; and
WHEREAS, capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Loan Agreement and in the Note; and
WHEREAS, each Debtor will derive substantial benefit and advantage from the financial accommodations provided by the Lender to the Company set forth in the Loan Agreement and the Note, and it will be to each such Debtor’s direct interest and economic benefit to obtain said financial accommodations from Lender; and
WHEREAS, to induce Lender to enter into the Loan Agreement and make the Loan, and Lender as security for its Obligations for the benefit of the Lender and any other Secured Parties, and their respective successors and assigns, each Debtor has agreed to pledge and grant to the Lender a Lien and security interest in all of Debtors’ right, title and interest in and to the Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined in this Agreement, all capitalized terms, when used herein shall have the same meaning as they are defined in the Loan Agreement and the Note. In addition, as used herein:
“Accounts” means any “account,” as such term is defined in the UCC, and, in any event, shall include, without limitation, “supporting obligations” as defined in the UCC.
“Chattel Paper” means any “chattel paper,” as such term is defined in the UCC.
“Collateral” shall have the meaning ascribed thereto in Section 3 hereof.
“Commercial Tort Claims” means “commercial tort claims”, as such term is defined in the UCC.
“Contracts” means all contracts, undertakings, or other agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under which a Debtor may now or hereafter have any right, title or interest, including, without limitation, with respect to an Account, any agreement relating to the terms of payment or the terms of performance thereof.
“Copyrights” means any copyrights, rights and interests in copyrights, works protectable by copyrights, copyright registrations and copyright applications, including, without limitation, the copyright registrations and applications listed on Schedule III attached hereto (if any), and all renewals of any of the foregoing, all income, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.
2
“Documents” means any “documents,” as such term is defined in the UCC, and shall include, without limitation, all documents of title (as defined in the UCC), bills of lading or other receipts evidencing or representing Inventory or Equipment.
“Equipment” means any “equipment,” as such term is defined in the UCC and, in any event, shall include, Motor Vehicles.
“Event of Default” shall have the meaning set forth in the Note.
“Excluded Assets” means each of the following: (i) any lease, license or other agreement or any property subject to a capital lease, purchase money security interest or similar arrangement, to the extent that a grant of a Lien thereon in favor of Secured Parties would violate or invalidate such lease, license, agreement or capital lease, purchase money security interest or similar arrangement or create a right of termination in favor of any other party thereto (other than the Debtors), so long as such provision exists and so long as such lease, license or agreement was not entered into in contemplation of circumventing the obligation to provide Collateral hereunder or in violation of the Loan Agreement, other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law including the bankruptcy code, or principles of equity and (ii) any stock of a Foreign Subsidiary that constitutes more than 65% of the outstanding stock of such Foreign Subsidiary.
“General Intangibles” means any “general intangibles,” as such term is defined in the UCC, and, in any event, shall include, without limitation, all right, title and interest in or under any Contract, models, drawings, materials and records, claims, literary rights, goodwill, rights of performance, Copyrights, Trademarks, Patents, warranties, rights under insurance policies and rights of indemnification.
“Goods” means any “goods”, as such term is defined in the UCC, including, without limitation, fixtures and embedded Software to the extent included in “goods” as defined in the UCC.
“Governmental Authority” means the government of the United States of America or any other nation, or any political subdivision thereof, whether state or local, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administration powers or functions of or pertaining to government over any Debtor or any of its subsidiaries, or any of their respective properties, assets or undertakings.
“Instruments” means any “instrument,” as such term is defined in the UCC, and shall include, without limitation, promissory notes, drafts, bills of exchange, trade acceptances, letters of credit, letter of credit rights (as defined in the UCC), and Chattel Paper.
“Inventory” means any “inventory,” as such term is defined in the UCC.
3
“Investment Property” means any “investment property”, as such term is defined in the UCC.
“Loan Agreement” means the loan agreement, dated as of March [14], 2025 between the Company and the Lender.
“Lien” has the meaning set forth in the Loan Agreement.
“Motor Vehicles” shall mean motor vehicles, tractors, trailers and other like property, whether or not the title thereto is governed by a certificate of title or ownership.
“Obligations” means all obligations, liabilities and indebtedness of every nature of Debtors from time to time owed or owing under or in respect of this Agreement, the Loan Agreement the Note, the Subsidiary Guarantee, the other Transaction Documents, as the case may be, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable whether before or after the filing of a bankruptcy, insolvency or similar proceeding under applicable federal, state, foreign or other law and whether or not an allowed claim in any such proceeding.
“Patents” means any patents, pending patents and patent applications, including, without limitation, the inventions and improvements described and claimed therein, all patentable inventions and those patents and patent applications listed on Schedule IV attached hereto (if any), and the reissues, divisions, continuations, renewals, extensions and continuations-in-part of any of the foregoing, and all income, royalties, damages and payments now or hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.
“Permitted Indebtedness” has the meaning as that term is defined in the Loan Agreement.
“Permitted Liens” means:
(a) Liens in favor of the Senior Lender securing the Existing Senior Indebtedness;
(b) Liens securing the payment of taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to a Loan Party, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien and with respect to which adequate reserves have been set aside on its books in accordance with GAAP;
(b) non-consensual statutory Liens (other than Liens arising under ERISA or securing the payment of taxes) arising in the ordinary course of a Loan Party’s business that do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s, mechanics’ and growers’ Liens, to such Liens secure Indebtedness which is not overdue or is fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to a Loan Party, in each case prior to the commencement of foreclosure or other similar proceedings, which proceedings (or orders entered in connection with such proceeding) have the effect of preventing the forfeiture or sale of the property subject to any such Lien and with respect to which adequate reserves have been set aside on its books in accordance with GAAP;
4
(c) security interests in equipment arising after the date hereof to secure Permitted Indebtedness, whether such Indebtedness is assumed or incurred by a Loan Party;
(e) pledges and deposits of cash by a Loan Party after the date hereof in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits consistent with the current practices of such Loan Party as of the date hereof;
(f) pledges and deposits of cash by a Loan Party after the date hereof to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of Indebtedness), statutory obligations and other similar obligations in each case in the ordinary course of business consistent with the current practices of such Loan Party as of the date hereof;
(g) Liens arising from (i) operating leases and the precautionary UCC financing statement filings in respect thereof and (ii) equipment or other materials which are not owned by a Loan Party located on the premises of a Loan Party (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Loan Party and the precautionary UCC financing statement filings in respect thereof;
(h) statutory or common law Liens or rights of setoff of depository banks with respect to funds of a Loan Party at such banks to secure fees and charges in connection with returned items or the standard fees and charges of such banks in connection with the deposit accounts maintained by a Loan Party at such banks (but not any other Indebtedness or obligations);
(i) judgments and other similar Liens arising in connection with court proceedings that do not constitute an Event of Default, provided, that, (i) such Liens are being contested in good faith and by appropriate proceedings diligently pursued, (ii) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (iii) a stay of enforcement of any such Liens is in effect and (iv) Agent may establish a Reserve with respect thereto;
(j) Liens on goods in favor of customs and revenue authorities arising as a matter of law to secure custom duties in connection with the importation of such goods; and
(k) Permitted Liens as defined in the Loan Agreement.
“Pledged Collateral” means all shares of the capital stock or membership interest equity of the Existing Subsidiaries and any Additional Debtors (other than the Company), and all Instruments and Investment Property whether or not physically delivered to the Collateral Agent according to this Agreement.
5
“Proceeds” means “proceeds,” as such term is defined in the UCC and, in any event, includes, without limitation, (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority), and (c) any and all other amounts from time to time paid or payable under, in respect of or in connection with any of the Collateral.
“Representative” means any Person acting as agent, representative or trustee on behalf of the Secured Parties from time to time.
“Security Documents” means this Agreement and any other documents securing the Liens of the Secured Parties hereunder.
“Software” means all “software” as such term is defined in the UCC, now owned or hereafter acquired by a Debtor, other than software embedded in any category of Goods, including, without limitation, all computer programs and all supporting information provided in connection with a transaction related to any program.
“Trademarks” means any trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, other business identifiers, prints and labels on which any of the foregoing have appeared or appear, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, the trademarks and applications listed in Schedule V attached hereto (if any) and renewals thereof, and all income, royalties, damages and payments now or hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.
“Transaction Documents” has the meaning as that term is defined in the Loan Agreement.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of Utah; provided, that to the extent that the Uniform Commercial Code is used to define any term herein and such term is defined differently in different Articles or Divisions of the Uniform Commercial Code, the definition of such term contained in Article or Division 9 shall govern.
Section 2. Representations, Warranties and Covenants of Debtors. Each Debtor represents and warrants to, and covenants with, the Secured Parties as follows:
(a) Subject to the Permitted Liens, such Debtor has or will have rights in and the power to transfer the Collateral in which it purports to grant a security interest pursuant to Section 3 hereof (subject, with respect to after acquired Collateral, to such Debtor acquiring the same) and no Lien other than Permitted Liens exists or will exist upon such Collateral at any time.
6
(b) Subject to the Permitted Liens, this Agreement is effective to create in favor of Secured Parties a valid security interest in and Lien upon all of such Debtor’s right, title and interest in and to the Collateral, and upon (i) the filing of appropriate UCC financing statements in the jurisdictions listed on Schedule I attached hereto, and (ii) except for the share capital of the Foreign Subsidiaries, which shall only be delivered to Secured Party upon the occurrence and during the continuation of an Event of Default under the Loan Documents, Motor Vehicles and the delivery to the Secured Parties of the Pledged Collateral together with assignments in blank, such security interest will be a duly perfected security interest (subject to Permitted Liens) in all of the Collateral.
(c) All of the Equipment, Inventory and Goods owned by such Debtor is located at the places as specified on Schedule I attached hereto. Except as disclosed on Schedule I, none of the Collateral is in the possession of any bailee, warehousemen, processor or consignee. Schedule I discloses such Debtor’s name as of the date hereof as it appears in official filings in the state or province, as applicable, of its incorporation, formation or organization, the type of entity of such Debtor (including corporation, partnership, limited partnership or limited liability company), organizational identification number issued by such Debtor’s state of incorporation, formation or organization (or a statement that no such number has been issued), such Debtor’s state or province, as applicable, of incorporation, formation or organization and the chief place of business, chief executive office and the office where such Debtor keeps its books and records and the states in which such Debtor conducts its business. Such Debtor has only one state or province, as applicable, of incorporation, formation or organization. Such Debtor does not do business and has not done business during the past five years under any trade name or fictitious business name except as disclosed on Schedule II attached hereto.
(d) No Copyrights, Patents or Trademarks listed on Schedules III, IV and V, respectively, if any, have been adjudged invalid or unenforceable or have been canceled, in whole or in part, or are not presently valid and enforceable. Each of such Copyrights, Patents and Trademarks (if any) is valid and enforceable. Subject to the Permitted Liens, such Debtor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to each of such Copyrights, Patents and Trademarks, identified on Schedules III, IV and V, as applicable, as being owned by such Debtor, free and clear of any liens (subject to Permitted Liens), charges and encumbrances, including without limitation licenses, shop rights and covenants by such Debtor not to sue third persons. Such Debtor has adopted, used and is currently using, or has a current bona fide intention to use, all of such Trademarks and Copyrights. Such Debtor has no notice of any suits or actions commenced or threatened with reference to the Copyrights, Patents or Trademarks owned by it.
(e) The outstanding Pledged Collateral of each of the Existing Subsidiaries is listed and set forth in Schedule VI.
(f) Each Debtor agrees to deliver to the Secured Parties an updated Schedule I, II, III, IV, V and/or VI within five Business Days of any material change thereto.
(g) Such Debtor does not own any Commercial Tort Claim except for those disclosed on Schedule II hereto (if any).
7
(h) All Equipment (excluding Motor Vehicles) owned by a Debtor and subject to a certificate of title or ownership statute is described on Schedule VII hereto. The Debtors will supply the Lender with a list of all currently owned Motor Vehicles within 30 days after the Funding Date (as defined in the Loan Agreement).
(i) The Existing Subsidiaries does not have any interest in real property except as disclosed on Schedule VIII (if any). Each Debtor shall deliver to Secured Parties a revised version of Schedule VIII showing any material changes thereto within 10 Business Days of any such change. Except as otherwise agreed to by Secured Parties, all such interests in real property are or shall be subject to a mortgage and deed of trust (in form and substance reasonably satisfactory to the Collateral Agent) in favor of Secured Parties (hereinafter, a “Mortgage”).
Section 3. Collateral. As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the obligations due the Secured Party under the Note, each Debtor hereby pledges and grants to the Collateral Agent, for the benefit of itself and each Secured Party, a Lien on and security interest in and to all of such Debtor’s assets, including all right, title and interest in the following properties and assets of such Debtor, whether now owned by such Debtor or hereafter acquired and whether now existing or hereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”).
Notwithstanding anything to the contrary express or implied contained in this Agreement, the Lien on and security interest of the Lender in the Collateral is hereby expressly made junior, subject and subordinate to the Lien on and security interest in the Collateral held by the Existing Senior Lenders securing the Existing Senior Indebtedness.
The Collateral consists of:
(a) all Instruments, together with all payments thereon or thereunder;
(b) all Accounts;
(c) all Inventory;
(d) all General Intangibles (including payment intangibles (as defined in the UCC) and Software);
(e) all Equipment;
(f) all Documents;
(g) all Contracts;
(h) all Goods;
(i) all Pledged Collateral and all Investment Property, including without limitation all equity interests now owned or hereafter acquired by each Debtor (other than the Company), including all of the interests in all Existing Subsidiaries and Additional Subsidiaries, if any, owned by the Company or any such Subsidiary;
8
(j) all Commercial Tort Claims specified on Schedule VII;
(k) all Trademarks, Patents, Copyrights and other Intellectual Property;
(l) all books and records pertaining to the other Collateral;
(m) all Software; and
(n) all other tangible and intangible property and other assets of such Debtor, including, without limitation, Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of and to any of the property of such Debtor described in the preceding clauses of this Section 3 (including, without limitation, any proceeds of insurance thereon, insurance claims and all rights, claims and benefits against any Person relating thereto), other rights to payments not otherwise included in the foregoing, and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or under the control of such Debtor, or any computer bureau or service company from time to time acting for such Debtor.
Notwithstanding anything to the contrary contained herein or in any Transaction Document, in no event shall the security interest granted herein or therein attach to any Excluded Assets.
Section 4. Covenants; Remedies. In furtherance of the grant of the pledge and security interest pursuant to Section 3 hereof, each Debtor hereby agrees with the Secured Parties as follows (subject to the Permitted Liens):
4.1 Delivery and Other Perfection; Maintenance, etc.
(a) Other Documents and Actions. Each Debtor shall give, execute, deliver, file and/or record any financing statement, registration, notice, instrument, document, agreement, or other papers that may be necessary or desirable (in the reasonable judgment of the Secured Parties or their Representative) to create, preserve, perfect or validate the security interest granted pursuant hereto (or any security interest or mortgage contemplated or required hereunder, including with respect to Section 2(h) of this Agreement) or to enable the Secured Parties or their Representative to exercise and enforce the rights of the Secured Parties hereunder with respect to such pledge and security interest, provided that notices to account debtors in respect of any Accounts or Instruments shall be subject to the provisions of clause (d) below. Notwithstanding the foregoing each Debtor hereby irrevocably authorizes the Secured Parties at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements (and other similar filings or registrations under other applicable laws and regulations pertaining to the creation, attachment, or perfection of security interests) and amendments thereto that (a) indicate the Collateral (i) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or (ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether such Debtor is an organization, the type of organization and any organization identification number issued to such Debtor. Each Debtor agrees to furnish any such information to the Secured Parties promptly upon request. Each Debtor also ratifies its authorization for the Secured Parties to have filed in any jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.
9
(b) Books and Records. Each Debtor (or a Company on behalf of a Debtor) shall maintain at its own cost and expense complete and accurate books and records of the Collateral, including, without limitation, a record of all payments received and all credits granted with respect to the Collateral and all other dealings with the Collateral. Upon the occurrence and during the continuation of any Event of Default, each Debtor shall deliver and turn over any such books and records (or true and correct copies thereof) to the Secured Parties or their Representative at any time on demand. Each Debtor shall permit any Representative of the Secured Parties, to inspect such books and records at any time during reasonable business hours upon at least five Business Days’ prior notice (and in no event, more frequently than twice during each 12-month period, unless an Event of Default has occurred and is continuing) and will provide photocopies thereof at such Debtor’s expense to the Secured Parties upon request of any Secured Party.
(c) Motor Vehicles. Any Motor Vehicles owned or acquired by any Debtor will be part of the Secured Parties’ security interest.
(d) Notice to Account Debtors; Verification. (i) Upon the occurrence and during the continuance of any Event of Default (or if any rights of set-off (other than set-offs against an Account arising under the Contract giving rise to the same Account) or contra accounts may be asserted, upon request of any Secured Party or their Representative, each Debtor shall promptly notify (and each Debtor hereby authorizes the Secured Parties and their Representative so to notify) each account debtor in respect of any Accounts or Instruments or other Persons obligated on the Collateral that such Collateral has been assigned to the Secured Parties hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Parties and (ii) the Secured Parties and their Representative shall have the right at any time or times (but in no event more than once during each 12-month period and acting through a Debtor and not independently, unless an Event of Default has occurred and is continuing) to make direct verification with the account debtors or other Persons obligated on the Collateral of any and all of the Accounts or other such Collateral.
(e) Intellectual Property. Each Debtor represents and warrants that the Copyrights, Patents and Trademarks listed on Schedules III, IV and V, respectively (if any), constitute all of the registered Copyrights and all of the Patents and Trademarks now owned by such Debtor and that are used or are useful in their business. If such Debtor shall (i) obtain rights to any new patentable inventions, any registered Copyrights or any Patents or Trademarks, or (ii) become entitled to the benefit of any registered Copyrights or any Patents or Trademarks or any improvement on any Patent, the provisions of this Agreement above shall automatically apply thereto and such Debtor shall give to Secured Parties prompt written notice thereof. Each Debtor hereby authorizes Secured Parties to modify this Agreement by amending Schedules III, IV and V, as applicable, to include any such registered Copyrights or any such Patents and Trademarks. Each Debtor shall have the duty (i) to prosecute diligently any patent, trademark, or service mark applications pending as of the date hereof or hereafter to the extent the Debtor reasonably believes they are material to the operation of the business of such Debtor, (ii) to preserve and maintain all rights in the Copyrights, Patents and Trademarks, to the extent the Debtor reasonably believes they are material to the operations of the business of such Debtor and (iii) to ensure that the Copyrights, Patents and Trademarks
10
are and remain enforceable, to the extent the Debtor reasonably believes they are material to the operations of the business of such Debtor. Any expenses incurred in connection with such Debtor’s obligations under this Section 4.1(f) shall be borne by such Debtor. Except for any such items that a Debtor reasonably believes (using prudent industry customs and practices) are no longer necessary for the on-going operations of its business, no Debtor shall abandon any material right to file a patent, trademark or service mark application, or abandon any pending patent, trademark or service mark application or any other Copyright, Patent or Trademark without the prior written consent of Secured Parties, which consent shall not be unreasonably withheld.
(f) Further Identification of Collateral. Each Debtor will, when and as often as reasonably requested by the Secured Parties or their Representative, furnish to the Secured Parties or such Representative, statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Secured Parties or their Representative may reasonably request, all in reasonable detail.
(g) Investment Property. Each Debtor will take any and all actions required or requested by the Secured Parties, from time to time, to (i) cause the Secured Parties to obtain exclusive control of any Investment Property owned by such Debtor in a manner acceptable to the Secured Parties, and (ii) obtain from any issuers of Investment Property and such other Persons, for the benefit of the Secured Parties, written confirmation of the Secured Parties’ control over such Investment Property. For purposes of this Section 4.1(g), the Secured Parties shall have exclusive control of Investment Property if (i) such Investment Property consists of certificated securities and a Debtor delivers such certificated securities to the Secured Parties (with appropriate endorsements if such certificated securities are in registered form); (ii) such Investment Property consists of uncertificated securities and either (x) a Debtor delivers such uncertificated securities to the Secured Parties or (y) the issuer thereof agrees, pursuant to documentation in form and substance satisfactory to the Secured Parties, that it will comply with instructions originated by the Secured Parties without further consent by such Debtor, and (iii) such Investment Property consists of security entitlements and either (x) the Secured Parties become the entitlement holders thereof or (y) the appropriate securities intermediary agrees, pursuant to the documentation in form and substance satisfactory to the Collateral Agent, that it will comply with entitlement orders originated by the Secured Parties without further consent by any Debtor. Notwithstanding any pledge of Investment Property by any Debtor hereunder that constitutes equity securities, unless an Event of Default has occurred and is continuing, such Debtor shall retain any voting or consent rights applicable thereto.
(h) Commercial Tort Claims. Each Debtor shall promptly notify Secured Parties of any Commercial Tort Claim acquired by it that concerns a claim in excess of $100,000 and unless otherwise consented to by Secured Parties, such Debtor shall enter into a supplement to this Agreement granting to Secured Parties a Lien on and security interest in such Commercial Tort Claim.
4.2 Other Liens. Other than Permitted Liens, Debtors will not create, permit or suffer to exist, and will defend the Collateral against and take such other action as is necessary to remove, any Lien on the Collateral except Permitted Liens, and will defend the right, title and interest of the Secured Parties in and to the Collateral and in and to all Proceeds thereof against the claims and demands of all Persons whatsoever, other than Permitted Liens.
11
4.3 Preservation of Rights. Whether or not any Event of Default has occurred or is continuing, the Secured Parties and their Representative may, but shall not be required to, take any steps the Secured Parties or their Representative deems reasonably necessary or appropriate to preserve any Collateral or any rights against third parties to any of the Collateral (other than Permitted Liens), including obtaining insurance for the Collateral at any time when such Debtor has failed to do so, and Debtors shall promptly pay, or reimburse the Secured Parties for, all reasonable expenses incurred in connection therewith.
4.4 Formation of Subsidiaries; Name Change; Location; Bailees.
(a) No Debtor shall form or acquire any subsidiary unless (i) such Debtor pledges all of the stock or equity interests of such subsidiary to the Secured Parties pursuant to an agreement in a form agreed to by the Collateral Agent, (ii) such subsidiary becomes a party to this Agreement and all other applicable Security Documents and (iii) the formation or acquisition of such subsidiary is not prohibited by the terms of the Transaction Documents.
(b) No Debtor shall (i) reincorporate or reorganize itself under the laws of any jurisdiction other than the jurisdiction in which it is incorporated or organized as of the date hereof, or (ii) otherwise change its name, identity or corporate structure, in each case, without prior written notice to Collateral Agent. Each Debtor will notify Secured Parties promptly in writing prior to any such change in the proposed use by such Debtor of any tradename or fictitious business name other than any such name set forth on Schedule II attached hereto.
(c) Except for the movement and sale of Inventory in the ordinary course of business and other sales of assets expressly permitted by the terms of the Loan Agreement, each Debtor will keep the Collateral at the locations specified in Schedule I. Each Debtor will give Secured Parties thirty (30) day’s prior written notice of any change in such Debtor’s chief place of business or of any new location for any of the Collateral.
(d) If any Collateral is at any time in the possession or control of any warehousemen, bailee, consignee or processor, such Debtor shall, upon the request of Secured Parties or their Representative, notify such warehousemen, bailee, consignee or processor of the Lien and security interest created hereby and shall instruct such Person to hold all such Collateral for Secured Parties’ account subject to Collateral Agent’s instructions.
(e) Each Debtor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement without the prior written consent of Collateral Agent and agrees that it will not do so without the prior written consent of Collateral Agent, subject to such Debtor’s rights under Section 9-509(d)(2) to the UCC.
4.5 Events of Default, Etc. During the period during which an Event of Default shall have occurred and be continuing, but subject at all times to the priority rights of the Senior Lender under the documents evidencing the Existing Senior Indebtedness (the “Existing Senior Indebtedness Documents”):
12
(a) each Debtor shall, at the request of the Secured Parties or their Representative, assemble the Collateral and make it available to Secured Parties or their Representative at a place or places designated by the Secured Parties or their Representative which are reasonably convenient to Secured Parties or their Representative, as applicable, and such Debtor;
(b) the Secured Parties or their Representative may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(c) the Secured Parties shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not said UCC is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to: (i) exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Secured Parties were the sole and absolute owner thereof (and each Debtor agrees to take all such action as may be appropriate to give effect to such right) and (ii) the appointment of a receiver or receivers for all or any part of the Collateral or business of a Debtor, whether such receivership be incident to a proposed sale or sales of such Collateral or otherwise and without regard to the value of the Collateral or the solvency of any person or persons liable for the payment of the Obligations secured by such Collateral. Each Debtor hereby consents to the appointment of such receiver or receivers, waives any and all defenses to such appointment and agrees that such appointment shall in no manner impair, prejudice or otherwise affect the rights of Secured Parties under this Agreement;
(d) the Secured Parties or their Representative in its discretion may, in the name of the Secured Parties or in the name of a Debtor or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so;
(e) the Secured Parties may, upon reasonable notice (such reasonable notice to be determined by Collateral Agent in its sole and absolute discretion, which shall not be less than ten (10) days), with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Secured Parties or their Representative, sell, lease, license, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the Collateral Agent deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Secured Parties or anyone else may be the purchaser, lessee, licensee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of Debtors, any such demand, notice and right or equity being hereby expressly waived and released. The Secured Parties may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned; and
13
(f) the rights, remedies and powers conferred by this Section 4.6 are in addition to, and not in substitution for, any other rights, remedies or powers that the Secured Parties may have under any Transaction Document, at law, in equity or by or under the UCC or any other statute or agreement. The Secured Parties may proceed by way of any action, suit or other proceeding at law or in equity and no right, remedy or power of the Secured Parties will be exclusive of or dependent on any other. The Secured Parties may exercise any of their rights, remedies or powers separately or in combination and at any time.
The proceeds of each collection, sale or other disposition under this Section 4.6 shall be applied in accordance with Section 4.8 hereof.
4.6 Deficiency and Surplus. If the proceeds of sale, collection or other realization of or upon the Collateral are insufficient to cover the costs and expenses of such realization and the payment in full of the Obligations, Debtors shall remain jointly and severally liable for any deficiency. If the proceeds of sale, collection or other realization of or upon the Collateral exceed the costs and expenses of such realization and the payment in full of the Obligations, the Collateral Agent shall promptly remit any such surplus to the Debtors.
4.7 Private Sale. Each Debtor recognizes that the Secured Parties may be unable to effect a public sale of any or all of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “Act”), and applicable state securities laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. Each Debtor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and each Debtor agrees that it is not commercially unreasonable for Secured Parties to engage in any such private sales or dispositions under such circumstances. Except as may be provided in the Existing Senior Indebtedness Documents or any intercreditor and subordination agreement required to be subsequently executed by the holder of Existing Senior Indebtedness, the Secured Parties shall be under no obligation to delay a sale of any of the Collateral to permit a Debtor to register such Collateral for public sale under the Act, or under applicable state securities laws, even if Debtors would agree to do so. The Secured Parties shall not incur any liability as a result of the sale of any such Collateral, or any part thereof, at any private sale provided for in this Agreement conducted in a commercially reasonable manner, and so long as Secured Parties conduct such sale in a commercially reasonable manner each Debtor hereby waives any claims against any Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Secured Parties accept the first offer received and does not offer the Collateral to more than one offeree.
14
Each Debtor further agrees to do or cause to be done all such other acts and things as may be necessary to make such sale or sales of any portion or all of any such Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Debtor’s expense. Each Debtor further agrees that a breach of any of the covenants contained in this Section 4.8 will cause irreparable injury to the Secured Parties, that the Secured Parties has no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 4.8 shall be specifically enforceable against Debtors, and each Debtor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing.
4.8 Application of Proceeds. Except as may be provided in the Existing Senior Indebtedness Documents or any intercreditor and subordination agreement required to be subsequently executed by the holder of Existing Senior Indebtedness, the proceeds of any collection, sale or other realization of all or any part of the Collateral, and any other cash at the time held by the Secured Parties under this Agreement, shall be applied to the Obligations on based on the then outstanding Default Amount due under the Note or as otherwise detailed on Schedule 4.8. Notwithstanding the foregoing, following an Event of Default under the Note, the Lender or other Holder may sell Conversion Shares (up to the Maximum Conversion Shares) and apply the net proceeds of such sale(s) to the reduction and payment of the Obligations, without regard to any priority rights of the Senior Lender in the Collateral or any provision of the Existing Senior Indebtedness Documents.
4.9 Attorney-in-Fact. Each Debtor hereby irrevocably constitutes and appoints the Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Debtor and in the name of such Debtor or in its own name, from time to time in the discretion of the Collateral Agent, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to perfect or protect any security interest granted hereunder, to maintain the perfection or priority of any security interest granted hereunder, or to otherwise accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, hereby gives the Collateral Agent the power and right, on behalf of such Debtor, without notice to or assent by such Debtor (to the extent permitted by applicable law), to do the following, upon the occurrence and during the continuation of an Event of Default under the Note:
(a) to take any and all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement;
(b) to ask, demand, collect, receive and give acquittance and receipts for any and all moneys due and to become due under any Collateral and, in the name of such Debtor or its own name or otherwise, to take possession of and endorse and collect any checks, drafts, notes, acceptances or other Instruments for the payment of moneys due under any Collateral and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Secured Parties for the purpose of collecting any and all such moneys due under any Collateral whenever payable and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Secured Parties for the purpose of collecting any and all such moneys due under any Collateral whenever payable;
15
(c) to pay or discharge charges or liens levied or placed on or threatened against the Collateral, to effect any insurance called for by the terms of this Agreement and to pay all or any part of the premiums therefor;
(d) to direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due, and to become due thereunder, directly to the Secured Parties or as the Secured Parties shall direct, and to receive payment of and receipt for any and all moneys, claims and other amounts due, and to become due at any time, in respect of or arising out of any Collateral;
(e) to sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications and notices in connection with accounts and other Documents constituting or relating to the Collateral;
(f) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any Collateral;
(g) to defend any suit, action or proceeding brought against a Debtor with respect to any Collateral;
(h) to settle, compromise or adjust any suit, action or proceeding described above and, in connection therewith, to give such discharges or releases as the Secured Parties may deem appropriate;
(i) to the extent that a Debtor’s authorization given in Section 4.1(a) of this Agreement is not sufficient to file such financing statements with respect to this Agreement, with or without such Debtor’s signature, or to file a photocopy of this Agreement in substitution for a financing statement, as the Secured Parties may deem appropriate and to execute in such Debtor’s name such financing statements and amendments thereto and continuation statements which may require such Debtor’s signature;
(j) generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Secured Parties were the absolute owners thereof for all purposes; and
(k) to do, at the Secured Parties option and at such Debtor’s expense, at any time, or from time to time, all acts and things which the Secured Parties reasonably deems necessary to protect or preserve or, upon the occurrence and during the continuation of an Event of Default, realize upon the Collateral and the Secured Parties’ lien therein, in order to effect the intent of this Agreement, all as fully and effectively as such Debtor might do.
Each Debtor hereby ratifies, to the extent permitted by law, all that such attorneys lawfully do or cause to be done by virtue hereof provided the same is performed in a commercially reasonable manner. The power of attorney granted hereunder is a power coupled with an interest and shall be irrevocable until the Obligations are indefeasibly paid in full in cash and this Agreement is terminated in accordance with Section 4.12 hereof.
16
Each Debtor also authorizes the Secured Parties, at any time from and after the occurrence and during the continuation of any Event of Default, (x) to communicate in its own name with any party to any Contract with regard to the assignment of the right, title and interest of such Debtor in and under the Contracts hereunder and other matters relating thereto and (y) to execute, in connection with any sale of Collateral provided for in Section 4.6 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral.
4.10 Perfection. Prior to or concurrently with the execution and delivery of this Agreement, each Debtor shall:
(a) file such financing statements, assignments for security and other documents in such offices as may be necessary or as the Secured Parties or their Representative may request to perfect the security interests granted by Section 3 of this Agreement;
(b) at any Secured Party’s request, deliver to the Secured Parties or their Representative the originals of all Instruments together with, in the case of Instruments constituting promissory notes, allonges attached thereto showing such promissory notes to be payable to the order of a blank payee;
(c) [reserved].
(d) If the Debtor has not done so, the Collateral Agent may do so at any later time at the sole cost of the Debtors.
4.11 Termination; Partial Release of Collateral. This Agreement and the Liens and security interests granted hereunder shall not terminate until the full and complete performance and payment in full of all such Obligations to Secured Parties, but excluding any inchoate and unasserted indemnity obligations) (i) in respect of the Transaction Documents, and (ii) with respect to which claims have been asserted by Collateral Agent and/or Lender, whereupon the Secured Parties shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral to or on the order of Debtors. The Secured Parties shall also execute and deliver to Debtors upon such termination and at Debtors’ expense such UCC termination statements, certificates for terminating the liens on the Motor Vehicles (if any) and such other documentation as shall be reasonably requested by Debtors to effect the termination and release of the Liens and security interests in favor of the Secured Parties affecting the Collateral. Notwithstanding anything to the contrary in this Agreement, upon full and complete satisfaction of the Note, Debtors obligations under this Agreement shall terminate and any Liens shall thereupon be void.
4.12 Further Assurances. At any time and from time to time, upon the written request of the Secured Parties or their Representative, and at the sole expense of Debtors, Debtors will promptly and duly execute and deliver any and all such further instruments, documents and agreements and take such further actions as the Secured Parties or their Representative may reasonably require in order for the Secured Parties to obtain the full benefits of this Agreement and of the rights and powers herein granted in favor of the Secured Parties, including, without limitation, using Debtors’ commercially reasonable efforts to secure all consents and approvals necessary or appropriate for the assignment to the Secured Parties of any Collateral held by Debtors or in which a Debtor has
17
any rights not heretofore assigned, the filing of any financing or continuation statements under the UCC with respect to the liens and security interests granted hereby, transferring Collateral to the Secured Parties’ possession, (if a security interest in such Collateral can be perfected by possession), placing the interest of the Secured Parties as lienholder on the certificate of title of any Motor Vehicle, and obtaining waivers of liens from landlords and mortgagees. Each Debtor also hereby authorizes the Secured Parties and their Representative to file any such financing or continuation statement without the signature of such Debtor to the extent permitted by applicable law.
4.13 Limitation on Duty of Secured Parties and Collateral Agent. The powers conferred on the Secured Parties and/or Collateral Agent under this Agreement are solely to protect the Secured Parties’ interest on behalf of themselves in the Collateral and shall not impose any duty upon Secured Parties or the and/or Collateral Agent it to exercise any such powers. The Secured Parties and and/or Collateral Agent shall be accountable only for amounts that they actually receive as a result of the exercise of such powers and neither the Secured Parties, their Representative, the Collateral Agent nor any of their respective officers, directors, employees or agents shall be responsible to Debtors for any act or failure to act, except for gross negligence or willful misconduct. Without limiting the foregoing, the Secured Parties, and/or Collateral Agent and any Representative shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in their possession if such Collateral is accorded treatment substantially equivalent to that which the relevant Person, in its individual capacity, accords its own property consisting of the type of Collateral involved, it being understood and agreed that neither the Secured Party, the Collateral Agent nor any Representative shall have any responsibility for taking any necessary steps (other than steps taken in accordance with the standard of care set forth above) to preserve rights against any Person with respect to any Collateral.
Also without limiting the generality of the foregoing, neither the Secured Party, the Lender and/or Collateral Agent nor any Representative shall have any obligation or liability under any Contract or license by reason of or arising out of this Agreement or the granting to the Secured Parties of a security interest therein or assignment thereof or the receipt by the Secured Parties, the and/or Collateral Agent or any Representative of any payment relating to any Contract or license pursuant hereto, nor shall the Secured Parties, the and/or Collateral Agent nor any Representative be required or obligated in any manner to perform or fulfill any of the obligations of Debtors under or pursuant to any Contract or license, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or license, or to present or file any claim, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
Section 5. Miscellaneous.
5.1 No Waiver. No failure on the part of any Secured Party, the Collateral Agent or any of its Representatives to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Secured Parties, the Collateral Agent or any Representative of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies hereunder provided are cumulative and may be exercised singly or concurrently and are not exclusive of any rights and remedies provided by law.
18
5.2 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Utah, without regard to the principles of conflict of laws thereof. Each Debtor agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the federal and state courts sitting in the County of Salt Lake City, Utah (the “Utah Courts”). Each Debtor hereto hereby irrevocably submits to the exclusive jurisdiction of the Utah Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, Action or Proceeding, any claim that it is not personally subject to the jurisdiction of such Utah Courts, or such Utah Courts are improper or inconvenient venue for such proceeding. Each Debtor hereby irrevocably waives personal service of process and consents to process being served in any such suit, Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each Debtor hereby irrevocably waives, to the fullest extent permitted by applicable law, (a) any right to assert any claim of public policy of any state or jurisdiction to contest the actions of the Secured Party and (b) any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If any party shall commence an Action or Proceeding to enforce any provisions of this Agreement, then the prevailing party in such Action or Proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such Action or Proceeding.
5.3 Notices. All notices, approvals, requests, demands and other communications hereunder shall be delivered or made in the manner set forth in, and shall be effective in accordance with the terms of, the Loan Agreement. Debtors and Collateral Agent may change their respective notice addresses by written notice given to each other party five (5) days prior to the effectiveness of such change.
5.4 Amendments, Etc. The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by the Debtor sought to be charged or benefited thereby and each of the Lender. Any such amendment or waiver shall be binding upon the Secured Parties and the Debtor sought to be charged or benefited thereby and their respective successors and assigns.
19
5.5 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of each of the parties hereto, provided, that no Debtor shall assign or transfer its rights hereunder without the prior written consent of each of the Secured Parties. Any Secured Party, including the Collateral Agent in its capacity as Collateral Agent, may assign its rights hereunder without the consent of Debtors, in which event such assignee shall be deemed to be Secured Parties and/or Collateral Agent, as applicable, hereunder with respect to such assigned rights.
5.6 Counterparts; Headings. This Agreement may be authenticated in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may authenticate this Agreement by signing any such counterpart. This Agreement may be authenticated by manual signature or facsimile, .pdf or similar electronic signature, all of which shall be equally valid. The headings in this Agreement are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.
5.7 Severability. If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Secured Parties and their Representative in order to carry out the intentions of the parties hereto as nearly as may be possible and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
5.8 WAIVER OF RIGHT TO TRIAL BY JURY. EACH DEBTOR AND SECURED PARTIES WAIVE THEIR RESPECTIVERIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONSCONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTYOR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH DEBTOR AND SECURED PARTIES AGREE THAT ANY SUCH CLAIMOR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIRRESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 5.8 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICHSEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALLAPPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
5.9 Joint and Several. The obligations, covenants and agreements of Debtors hereunder shall be the joint and several obligations, covenants and agreements of each Debtor, whether or not specifically stated herein without preferences or distinction among them.
5.10 Collateral Agent and Secured Party Indemnification.
(a) Each Secured Party has pursuant to the Loan Agreement designated and appointed the Lender as Collateral Agent and as the administrative agent of such Secured Party under this Agreement and the related agreements.
20
(b) Except with regard to the priority rights of the Senior Lender in the Collateral and in any subsequent intercreditor or subordination agreement entered into between Senior Lender and the Lender, nothing in this Section 5.10 or elsewhere in this Agreement shall be deemed to limit or otherwise affect the rights of Secured Parties or Lender to exercise any remedy provided in this Agreement or any other Transaction Document.
(c) if pursuant to any related agreement Secured Parties are given the discretion to allocate proceeds received by Secured Parties pursuant to the exercise of remedies under the related agreements or at law or in equity (including without limitation with respect to any secured creditor remedies exercised against the Collateral and any other collateral security provided for under any related agreement), Secured Parties shall apply such proceeds to the then outstanding Obligations in the following order of priority (with amounts received being applied in the numerical order set forth below until exhausted prior to the application to the next succeeding category and each of the Lender or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses second, third and fourth below):
first, to payment of fees, costs and expenses (including reasonable attorney’s fees) owing to the Secured Parties;
second, to payment of all accrued unpaid interest and fees (other than fees owing to Collateral Agent) on the Obligations;
third, to payment of principal of the Obligations;
fourth, to payment of any other amounts owing constituting Obligations; and
fifth, any remainder shall be for the account of and paid to whoever may be lawfully entitled thereto.
5.11 No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
5.12 ENTIRE AGREEMENT; AMENDMENT. THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS, SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN SECURED PARTIES, THE DEBTORS, THEIR AFFILIATES AND PERSONS ACTING ON THEIR BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS AND THE OTHER INSTRUMENTS REFERENCED HEREIN AND THEREIN, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR THEREIN, NEITHER THE SECURED PARTIES NOR ANY DEBTOR MAKES ANY REPRESENTATION, WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS. AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS DISCUSSED HEREIN. NO PROVISION OF THIS AGREEMENT MAY BE AMENDED, MODIFIED OR SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED BY THE DEBTORS AND THE SECURED PARTIES.
Signature pages follow
21
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed and delivered as of the day and year first above written.
| DEBTORS: | |
|---|---|
| Vivakor Inc. | |
| By: | |
| Name: | James Ballengee |
| Title: | Chief Executive Officer |
| SILVER FUELS DELHI, LLC, | |
| a Louisiana limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
| WHITE CLAW COLORADO CITY LLC, | |
| a Texas limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
| VIVAVENTURES REMEDIATION CORPORATION, | |
| a Texas corporation | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
22
| VIVAKOR SUPPLY & TRADING, LLC., | |
|---|---|
| a Nevada corporation | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
| ENDEAVOR CRUDE, LLC, | |
| --- | --- |
| a Texas limited liability | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
| MERIDIAN EQUIPMENT LEASING LLC, | |
| --- | --- |
| a Texas limited liability company, | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman,<br> President, & CEO |
| SILVER FUELS PROCESSING LLC, | |
| --- | --- |
| a Texas limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
23
| CPE GATHERING MIDCON, LLC, | |
|---|---|
| a Delaware limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| EQUIPMENT TRANSPORT, LLC, | |
| --- | --- |
| a Pennsylvania limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| RPC DESIGN & MANUFACTURING, LLC, | |
| --- | --- |
| a Utah limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| VIVAKOR ADMINSTRATION, LLC, | |
| --- | --- |
| a Texas limited liability company | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
24
| ET EMPLOYEECO, LLC, | |
|---|---|
| a Delaware limited liability company | |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
| VIVAVENTURES ENERGY GROUP, INC.,<br> a Nevada corporation | |
| --- | --- |
| By: VIVAVENTURES<br> MANAGEMENT COMPANY, INC., | |
| a Nevada corporation, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, &<br> CEO |
| VIVAVENTURES OIL SANDS, INC., a Utah corporation | |
| --- | --- |
| By: VIVAVENTURES<br> MANAGEMENT COMPANY, INC., | |
| a Nevada corporation, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, &<br> CEO |
| VIVAKOR MIDDLE EAST, LLC,<br> a Qatar limited liability company | |
| --- | --- |
| By: VIVAKOR ADMINISTRATION, LLC, | |
| a Texas limited liability company, | |
| its Manager | |
| By: | |
| Name: | James Ballengee |
| Title: | Chairman, President, & CEO |
25
| LENDER AND COLLATERAL AGENT: | |
|---|---|
| J.J Astor & Co. | |
| By: | |
| Michael R. Pope, CEO |
26
EXHIBIT A
Form of Joinder
Joinder to Security Agreement
The undersigned, ______________________________, hereby joins in the execution of that certain Security Agreement dated as of March ____, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”) by and between (1) each material subsidiary of Vivakor Inc. a Nevada corporation (the “Company”) signatory thereto (each, a “Debtor”), on the one hand, and (2) Lead Secured Party, in its capacity as Collateral Agent for the benefit of itself and each of the Lender, on the other (each, together with its respective successors and assigns, a “Secured Party,” and collectively the “Secured Parties”). By executing this Joinder, the undersigned hereby agrees that it is an additional “Debtor under the Security Agreement agrees to be bound by all of the terms and provisions thereof. The undersigned represents and warrants that the representations and warranties set forth in the Security Agreement are, with respect to the undersigned, true and correct as of the date hereof.
The undersigned represents and warrants to Secured Parties that:
(a) all of the Equipment, Inventory and Goods owned by such Debtor is located at the places as specified on Schedule I and such Debtor conducts business in the jurisdiction set forth on Schedule I;
(b) except as disclosed on Schedule I, none of such Collateral is in the possession of any bailee, warehousemen, processor or consignee;
(c) the chief place of business, chief executive office and the office where such Debtor keeps its books and records are located at the place specified on Schedule I;
(d) such Debtor (including any Person acquired by such Debtor) does not do business or has not done business during the past five years under any tradename or fictitious business name, except as disclosed on Schedule II;
(e) all Copyrights, Patents and Trademarks owned or licensed by the undersigned are listed in Schedules III, IV and V, respectively;
(f) all Commercial Tort Claims of such Debtor are listed on Schedule VI;
(g) all Equipment (excluding Motor Vehicles) owned by such debtor are listed on Schedule VII.
| [ADDITIONAL DEBTOR] |
|---|
| By: |
| Name: |
| Title: |
A-1
SCHEDULE I
Jurisdictions and Debtor’s Information
| Debtor | Domicile |
|---|---|
| Vivakor, Inc. | Nevada |
| Vivakor Supply & Trading, LLC | Texas |
| Silver Fuels Processing, LLC | Texas |
| Silver Fuels Delhi, LLC | Texas |
| White Claw Colorado City, LLC | Texas |
| VivaVentures Remediation Corp. | Texas |
| Meridian Equipment Leasing, LLC | Texas |
| Endeavor Crude, LLC | Texas |
| CPE Gathering Midcon, LLC | Delaware |
| Equipment Transport, LLC | Pennsylvania |
| RPC Design & Manufacturing, LLC | Utah |
| Vivakor Administration, LLC | Texas |
| ET EmployeeCo, LLC | Delaware |
| VivaVentures Energy Group, Inc. | Nevada |
| VivaVentures Oil Sands, Inc. | Utah |
| Vivakor Middle East, LLC | a Qatar limited liability company |
Sch. I-1
SCHEDULE II
Trade Names
None.
Sch. II-1
SCHEDULE III
Copyrights
None.
Sch. III-1
SCHEDULE IV
Patents
Sch. IV-1
SCHEDULE V
Trademarks
None.
Sch. V-1
SCHEDULE VI
Commercial Tort Claim
None.
Sch. VI-1
SCHEDULE VII
Debtor’s Equipment
The Company does not own any property subject to a certificate of title or ownership statute except for Motor Vehicles.
Sch. VII-1
SCHEDULE VIII
Real Property
| Gross<br> Carrying<br> Amount | Accumulated<br><br> <br>Depreciation | Net<br> Book Value | ||||
|---|---|---|---|---|---|---|
| Equipment | 942,880 | 539,814 | 403,066 | |||
| Property | 17,000 | - | 17,000 | |||
| Finance lease- Right of use assets | 3,579,544 | 2,270,142 | 1,309,402 | |||
| Construction in process: | ||||||
| Wash Plant Facilities | 5,722,632 | - | 5,722,632 | |||
| Remediation Processing Unit System A | 2,936,167 | - | 2,936,167 | |||
| Remediation Processing Unit System B | 2,936,167 | - | 2,936,167 | |||
| WCCC Tank Expansion | 1,256,484 | - | 1,256,484 |
Sch. VIII-1